USA > Massachusetts > Hampden County > Springfield > Colonial justice in western Massachusetts, 1639-1702; the Pynchon court record, an original judges' diary of the administration of justice in the Springfield courts in the Massachusetts Bay Colony > Part 20
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44 Laws and Liberties Mass. 56; Col. Laws Mass., 1660 203-204; Col. Laws Mass., 1672 162-163.
45 Rec. 159.
46 Col. Laws Mass., 1672 18, 125.
47 Rec. 193; Col. Laws Mass., 1672 209, amending ibid. 18.
48 1 Acts and Res. Prov. Mass. Bay 81, 320.
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Booth v. Hayward, is found a "Plea of unjust Impounding" by de- fendant of a mare and two colts which had been replevied by plain- tiff. In this case the parties "agreed al past matters" and plaintiff's bond was delivered up.49
ACTION OF SLANDER OR DEFAMATION
The laws of the commonwealth recognized the action of slander, sometimes referred to as defamation, as a separate form of action.50 In English practice slander would fall under trespass on the case. As has been noted, slander or defamation was a criminal offense which might, however, result in an award of damages to the injured party- as in the widow Marshfield's case. The records of other courts in the colony reflect a substantial volume of actions of slander or defama- tion; the number of such actions appearing in the Record is com- paratively modest.
In one of the earliest entries in the Record the Reverend Moxon brought an action of slander against John Woodcock for reporting that plaintiff had taken a false oath against him at Hartford. In the next year collateral reference is found to recovery by Henry Gregory of twenty shillings for three slanders, but the nature of the slander does not appear. John Woodcock also sought, apparently without success, a warrant to warn Henry Gregory to answer him in two ac- tions of slander.51
In September 1658 Edward Elmer brought an action of defama- tion against William Holton and Robert Bartlett for affirming that plaintiff, in going from Northampton to Springfield to take his oath as commissioner for ending small causes, "went down in a disorderly way" and for charging that plaintiff had "made a breach or rent in the Town [Northampton] concerninge the Lords dayes meetings." The commissioners, while they could not wholly free plaintiff from blame on the first count, found no defamation-"the speaking of a mans faylings and infirmityes may be disorderly and yet not a defa- mation." On the second count, the commissioners found the charge to some degree defamatory but, in regard of "some blame worthy car- riage" on plaintiff's part, awarded no damages. The related com- plaint of Edward Elmer's son against Goodwife Holton has already been noted.52 Edward Elmer reappears in two actions of slander at the March 27, 1659/60 court. In a review of an action of slander, pre- viously tried at Northampton, in which Elmer was charged with slandering William Clark in saying that he was "noe better than a
49 Rec. 219, 224.
51 Rec. 4-5, 9, 10.
50 Col. Laws Mass., 1672 2, 21, 92.
52 Rec. 74-75. .
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theefe," Elmer withdrew his action. In an action by Nathaniel Clark, son of William Clark, against Elmer for calling plaintiff a thief, the jury found for plaintiff. It seems probable that these actions of slan- der were related to an action on the case, tried at the same court, by Elmer against William Clark for "takeing away of tymber" in which the commissioners found for defendant.53
One of the three actions by William Deynes against John Bagg, in March 1659, for affirming that plaintiff "did convert a greate deal of lead from the right owner" was presumably an action of slander. These matters issued by arbitration, Bagg making public acknowl- edgment of his offenses and receiving an admonition. Another action of slander against John Bagg, for reporting that Joseph Crowfoot had stolen while he tended the mill at Windsor, was entered at the same sitting; a later entry indicates that Bagg was cast in the amount of six shillings.54 In the next year Francis Hacklinton brought an action of slander against Mary Ely for saying that plaintiff was seen at an un- seasonable time of night with Hester Bliss and that there were "un- seemely passages between them," but the commissioners, finding the testimony of little weight, adjudged it no slander.55
Several actions of defamation were brought before the commis- sioners exercising County Court powers (1660-62) . Two actions by Francis Hacklinton, one against Alexander Edwards "in Saying that he runne away with his mare," and the other against Henry Cun- liffe "in Sayinge he is a man of noe good report" were withdrawn. In an action of defamation by Richard Fellowes against Judith Var- lette, alleging two hundred pounds damages from her statement that he had played or would have played the rogue, the jury found dam- ages of ten shillings, plus thirteen shillings, sixpence costs of court. William Pixley was awarded ten pounds by a jury in an action against Joseph Roote for "Saying that he had gott Sarah Lynsley with child." 56
The complaint entered in March 1676/7 by Joseph Browne against Lidia Morgan "for her abusive cariage and Language towards him using reprochfull and Scandalous speeches to him and of him" appears to have been a civil action, but it was not characterized as to form of action. In December 1694 Isack Meacham recovered ten shillings damages in an action against Obadiah Abbee for defama- tion in saying plaintiff was a cheater and had cheated him and that plaintiff (who seemingly had by committee order laid out a highway) had "altered the Highway and made the East Lots fall back to bring
53 Rec. 84-85.
56 1 Hamp. Cty. Probate Ct. Rec. 7, 10,
54 Rec. 78, 83.
55 Rec. 89.
14.
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INTRODUCTION
the Pease out of the dirt." 57 In February 1685/6 Benjamin Knowl- ton brought an action against Charles Ferry for defaming plaintiff's wife by false reports and "aspersing her as being the Raiser of scan- dalous reports on Miriam Mirick deceased," in which public ac- knowledgment of defendant's fault was ordered. In the same year Deacon Jonathan Burt brought an action against Thomas Mirick, Senior for defaming plaintiff by saying "he lyed basely and was a Lying man," but forgave defendant upon "his owning his disorder and Ill speakings."
The first action of this nature under the Second Charter is found in March 1697/8 when Hezakiah Dickenson brought a "Plea of Def- amation" against Abraham Temple for "Saying writing or in a Li- bellous manner declaring or Publishing" that plaintiff was "a Theife a lyar and whore Master." Defendant denied the charge, but Pyn- chon found "to much Idle base and reprochful writing, speeches and carriage" by defendant "in Publishing or spreading that which Tends to the defamation" of plaintiff. However, the damage to plain- tiff not being demonstrated and "supposing none believe any of the reports Concerning him," Pynchon left the matter for the present and plaintiff to further process as he saw cause.59 The criminal as- pects of Temple's conduct have already been noted. In September 1700 in King v. Sexton plaintiff recovered ten shillings and costs of court in an action of defamation in that defendant had called plain- tiff a thief.60
PROBATE AND ADMINISTRATION
Matters of probate and administration were not normally com- prehended within general grants of civil jurisdiction in seventeenth- century Massachusetts. None of the commissions discussed above made specific reference to jurisdiction in such matters and only a few entries relating to testamentary matters appear in the Record. The last will and testament of John Searles was recorded on April 20, 1642, probably in connection with the antenuptial agreement be- tween the widow Searles and Alexander Edwards, recorded on the same date.61 On March 5, 1654/5 the commissioners made an order relating to the estate of Nathaniel Bliss, who died intestate, but again this was in connection with an antenuptial agreement between the widow and Thomas Gilbert. On July 14, 1659 the commissioners en-
57 Rec. 164, 188-191.
58 Rec. 196, 202.
59 Rec. 235B.
60 Rec. 247.
61 Rec. 18-21. See also the antenuptial
agreements entered into by widows in- tending to remarry and approved by Wil- liam Pynchon on August 7, 1641 (ibid. 15) and April 12, 1649 (ibid. 29) .
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tered an order of administration upon the estate of Symon Sackett. In a few cases orders were made as to guardianships.62 A number of orders in matters of probate and administration appear in the sup- plemental Registry of Probate material for 1660-62 when the com- missioners were exercising the powers of a County Court, since normally such matters were handled on the County Court level.
A review of the civil jurisdiction exercised by the several courts at Springfield and the vicinity indicates that some attention was paid from time to time to forms of action. However, in no case does it ap- pear that, as in English practice, functional significance attached to the use of a particular form of action. With litigants acting as their own attorneys and with little or no professional guidance from judge, clerk, or recorder, it would be unrealistic to expect close adherence to the standards of Westminster Hall. This is especially true when it is considered that the colony laws for much of the period made only limited attempts to comply with such standards and the general Puri- tan attitude was one of reformation of, rather than strict adherence to, existing English practice and procedure. The laws of the General Court made accurate characterization as to form of action neither a virtue nor a necessity for the litigant. The Court of Assistants, as far as appears, imposed no more stringent requirements in its judicial rule-making.
62 Rec. 67-68, 80, 178, 181.
X. Procedure in Civil Actions
1639-1686. THE FIRST CHARTER
T. HE entries appearing in the Record for civil actions dur- ing the First Charter reveal slight concern for recordation of proce- dural details. The original grant of authority to William Pynchon authorized him "to direct warrantes, both processe executions and at- tachmentes." The subsequent commissions of the General Court made no reference to power to issue process. However, such power was probably implied, as in the early laws conferring civil jurisdic- tion upon magistrates and commissioners for ending small causes.1 The earliest cases indicate that in most instances an action was com- menced by service upon defendant by the constable of a "warrant" warning defendant to answer plaintiff's complaint, this "warrant" being granted by Pynchon. It seems likely that the form of such "warrant" was in the nature of a "summons." 2 The entries for the later commonwealth period indicate use of a summons as the pro- cedural norm.
Under a 1641 law each town was authorized to establish the of- fice of clerk of the writs. This officer was authorized to grant sum- monses and attachments in all civil actions, replevins, and sum- monses for witnesses.3 The first reference in the Record to a clerk of the writs is on May 29, 1649 when an entry indicates that Henry
1 Rec. 2. Later laws assumed magis- trates had power to issue "Warrants, Summons and Attachments" (Col. Laws Mass., 1672 28) , but the December 10, 1641 order of the General Court establish- ing the office of clerk of the writs spe- cifically authorized magistrates to issue "warrants for summons" in the interim. 1 Rec. Mass. Bay 344-345.
2 Rec. 10. See the reference to de- fendant in Moxon v. Woodcock being "summond by warrant" (Rec. 4) and the
interchangeable use of "warrant" and "summons" in the colony laws. Laws and Liberties Mass. 12; Col. Laws Mass., 1672 7.
3 Laws and Liberties Mass. 12. Cf. the first appointments by the General Court which did not include Springfield (1 Rec. Mass. Bay 344-345) and the 1640 appoint- ment by the General Court of certain per- sons in various towns (not including Springfield) "to take caption or cogni- zance, and to make replevies." Ibid. 307.
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Burt was chosen clerk of the writs for Springfield; on the same day William Pynchon noted that "all the printed laws" (the Laws and Liberties of 1648) were read, the whole town being present.4 Whether after this date all initial process issued by the clerk of the writs is not disclosed by the Record. A magistrate resident in Spring- field had specific authority under the 1648 laws to issue warrants, summonses, and attachments.5 Presumably the various commission- ers for Springfield had authority to issue process by virtue of the same law which conferred such authority upon commissioners to end small causes in the various towns lacking magistrates. While evidence is lacking, it is likely that after May 1649 the form of sum- mons set forth under Presidents and Formes in the printed laws, probably directed to the constable, was used; perhaps process issued in the King's name prior to the date (1662) when required by order of the General Court. By virtue of a 1647 law a defendant was at liberty whether or not to appear if the first summons was not served six days before the court at which it was returnable and "the Case briefly specified in the Warrant." The same period prevailed in the case of attachments until 1685 when it was changed to fourteen days.6
The original authorization of William Pynchon, as well as the law establishing the office of clerk of the writs, made reference to the use of attachments. An early law (1641) provided that the clerk of the writs grant attachment only where defendant was a stranger, or going out of the jurisdiction, or about to make away with his estate to defraud creditors, or doubtful in his estate. It was later provided that such status be signified to the clerk in writing by two honest persons dwelling near defendant. In case of courts suddenly called on extraordinary occasions attachment might be employed and the six-day service requirement dispensed with.7 In 1650 the law was liberalized so that every plaintiff should be at liberty to take out either a summons or an attachment against any defendant, except that no attachment was to be granted any for- eigner in an action against a settled inhabitant unless sufficient se- curity was given to prosecute the action and answer for such costs as should be awarded defendant. Under a 1644 law, in all attachments of goods and chattels, or of lands and hereditaments, legal notice had to be given to the party or left in writing at his house or place of
4 Rec. 31. instance where failure to comply with this law was raised, see Rec. 84) ; 5 Rec. Mass. Bay 503.
5 Laws and Liberties Mass. 8. On the power to issue replevins see 1 Rec. Mass. Bay 307.
6 Laws and Liberties Mass. 49 (for an
7 Laws and Liberties Mass. 12, 49; 1 Rec. Mass. Bay 344-345; 2 ibid. 163, 194.
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INTRODUCTION
legal abode; otherwise the suit was not to proceed to trial, except in the case where a defendant was out of the jurisdiction.8
With the exception of the years between 1678 and 1681, the Rec- ord, during the period of the First Charter, makes little reference to use of attachments. However, this should not be taken to mean that in every case in which the Record is silent as to process, a summons, rather than attachment, was utilized. The form of attachment em- ployed is not set forth in the Record; however, an attachment issued by Henry Burt, as clerk of the writs, in Parsons v. Bridgman has sur- vived,9 reading as follows:
To the Constable of Northampton
By virtue hereof you are required to attach the body of Sarah Bridg- man wife of James Bridgman of Northampton and to take bond of her to the value of an 100f with suficient surty or suerties for her personall ap- pearance at the next Countey Court held at Cambridg on the 7th of Oc- tober next ensuing the date hereof Then and there to answer at the Complaint of Joseph Parsons for Slandering of the [illegible] Parsons and to make a true returne thereof under your hand hereof fayle you not.
Springfield this 8 of September 1656
By the Court HENRY BURT
This warrant was returned to the County Court at Cambridge by Alexander Edwards, constable, that he had taken the body of Sarah Bridgman "and for want of Suirtie hav commited her to Safe custody in North Hamton [Northampton] shee being weeke and with childe is not able to appeare at this court without hassard to her life." The form of this attachment follows in substance that provided in the Presidents and Formes with some variations in wording.
The practice with respect to attachment found in the Record varies from that in Suffolk, Essex, and Norfolk where, on the county level at least, attachment was the usual method of commencing an action. The writ was usually served by the marshal in such counties; from the Record it is not clear by whom attachments were served. In most cases they probably were served by the constable, a practice in accordance with the laws of the commonwealth. The form of attach- ment used in the other counties followed in substance the form pro- vided by the laws of the colony.
A 1641 law provided that every person should have liberty to replevy chattels or goods impounded, distrained, or seized, unless
8 Laws and Liberties Mass. 3; 4 Rec. Mass. Bay (Part I) 5-6; 2 ibid. 80. For the form of summons for appearance on attachment see 5 ibid. 489-490.
9 File Papers in Parsons v. Bridgman, Folder 16 (1656) , Office of Clerk, Superior Court, Middlesex County, Mass. (East Cambridge) .
1.7 7
PROCEDURE IN CIVIL ACTIONS
upon execution after judgment or in payment of fines, provided he put in good security to prosecute the replevin and to satisfy such demand as his adversary should recover against him in law. In- cluded among the Presidents and Formes provided by the laws was a writ of replevin which embodied the statutory requirement of se- curity.10 However, the only replevin action entered in the Record under the First Charter yields no information as to the procedure followed.11
While the Record is silent on the point, plaintiff presumably en- tered his action with the court at the opening of the sitting at which the cause was to be heard-at least a 1652 law provided that, in order to defray charges, every person impleading another in an action for less than forty shillings, triable before a magistrate or commissioners for ending small causes, should pay ten groats (three shillings, four- pence) before his case be entered.12 What was entailed in "entering an action" does not appear from a reading of the Record or an ex- amination of the colony laws. Perhaps the practice of the County Courts or Courts Baron in England was followed in this particular.
The colony laws made no provision for regular sittings by mag- istrates or commissioners for small causes, which must have posed a practical problem for the clerk of the writs. However, an order at a Springfield general town meeting on November 6, 1648 provided that there should be henceforth four courts kept yearly on the first Tuesdays of November, February, May, and September, except for special occasions when reasonable notice was to be given.13 The Rec- ord indicates no adherence to this order; William Pynchon may have felt that the town had no authority to regulate the time of his sit- tings. The only other regulation of court days, except for the "County Courts" held at Springfield and Northampton, is found in the appointment by Pynchon, Holyoke, and Chapin, as commission- ers, of the first Thursday in March and in September for the hearing and determining of differences or offenses that might arise in the township.14 The Record does not indicate where the earlier Spring- field sittings were held; after 1665 it seems likely that they were held at John Pynchon's house. At Northampton, as entries in the Pynchon Account Books show, the commissioners held court at the ordinary.
After an action had been entered plaintiff was supposed to make his appearance and prosecute when the cause was reached for trial. Due to failure of plaintiffs to attend the courts ready to enter an ap-
10 Col. Laws Mass., 1672 132, 162-163.
11 Rec. 159.
12 Col. Laws Mass., 1672 2. See also the
1/6 fee mentioned in 2 Rec. Mass. Bay 208. The fee for entry of the action was
waived in one instance when the parties, unprepared for trial, agreed to let the matter rest. Rec. 103.
13 1 Burt, Hist. Springfield 195.
14 Rec. 55.
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INTRODUCTION
pearance and prosecute, which had been connived at by the courts, the 1672 laws provided that, if a plaintiff did not appear and prose- cute after being three times called in court by name, he was to be non-suited and costs awarded defendant.15 This sanction was not in- voked in any entry appearing in the Record. Even in the absence of the reformatory law, as a March 1661 entry in the supplemental Reg- istry of Probate material shows, a defendant might be awarded costs if plaintiff failed to appear to prosecute.16
After the plaintiff had been called to appear to prosecute, the defendant was called three times in court by the constable to appear to answer. This practice is found in an early entry in the Record; the 1672 law, which was also applicable to appearances by defend- ants, provided for an award of costs to the plaintiff if the defendant failed to appear when thus called. However, the supplemental Reg- istry of Probate material shows such costs were awarded even prior to the enactment of this law.17 Prior to any award of costs to plaintiff the constable or perhaps the marshal must have made return of serv- ice of the summons. (There is no indication in the Record of service of a summons by a plaintiff or his agent.) Nothing appears as to the form of return used. A 1679 case indicates that plaintiff was responsi- ble for seeing that the constable made return of the summons and might be required to pay defendant's charges in case of failure to pro- cure return of service of the summons. A constable failing to make return of a summons might be fined.18
In those cases in which attachment was used the court might pro- ceed to an ex parte determination if defendant failed to appear. Late in the period the General Court provided a form of bond which plaintiff was required to give to prosecute the attachment to effect when such process issued.19 Again a return of service would have to be made, either by the constable or marshal, before the court would proceed to an ex parte determination. (Under a 1675 law the con- stable or marshal might make his return on the back side of the at- tachment and deliver it to the plaintiff.) With the exception of a few cases where chattels were attached, it does not appear from the Rec- ord whether personalty or real property was attached or whether suf- ficient surety was given for appearance.2ยบ A form of "Bond for Ap-
15 Col. Laws Mass., 1672 87.
16 1 Hamp. Cty. Probate Ct. Rec. 4. At the same court a plaintiff was non-suited for failure to give defendant legal warning to appear and ordered to pay 10 shillings for entry of his action.
17 Rec. 17, 168; 1 Hamp. Cty. Probate Ct. Rec. 8.
18 Rec. 17, 168.
19 Rec. 170; 1 Hamp. Cty. Probate Ct. Rec. 8 (presumably attachment had been used in Kinge v. Elmer) ; 4 Rec. Mass. Bay (Part II) 509; 5 ibid. 489-490.
20 Rec. 38, 180; Col. Laws Mass., 1672 220.
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pearance" in attachment cases was provided in the Presidents and Formes.
At common law in England attachment was used only to compel the appearance of the defendant; when he entered an appearance, the attachment was dissolved. In the commonwealth, after some in- convenience arising from the common-law rule, it was provided by law that the attachment should not be released by appearance and that the property attached or bond given by sureties was to respond to the judgment.21
With one exception nothing in the Record indicates that, when the action had been entered and both parties had appeared, written pleadings were used.22 (A 1647 law requiring plaintiffs to deliver a written declaration in a fair and legible hand to the clerk of the court at least three days before the court so that defendant might answer and summon witnesses was short-lived.) Two cases indicate that the summons might serve the purpose of a declaration or com- plaint. In a March 1660 action of the case for breach of an agree- ment defendant pleaded that the case was laid down in such general terms in the summons that he knew not what agreement was in- tended and therefore was not prepared to answer. The commission- ers judged the plea reasonable. In a December 1684 case a summons was held to have fully complied with the law in setting forth the defamation of plaintiff's name in several ways.23 The term "answer" was used loosely to characterize defendant's plea. There are no ref- erences to any demurrers, dilatory pleas or pleas in bar, including pleas of the general issue such as non est factum, nil debet, not guilty, or non cepit, nor do the entries reflect the formalized language asso- ciated with recognized pleas in English practice. No mention is made of imparlances, replications, rejoinders, surrejoinders, rebutters, or surrebutters. The issue was apparently arrived at on the basis of pleadings ad exitum consisting of a declaration or complaint and answer. Apparently in most cases the issue was one of fact not of law.
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