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 21
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In connection with use of written pleadings it should be noted that in Essex County, for instance, the records on appeal from judg- ments of magistrates to the County Court do not contain written declarations or complaints and answers. In cases in which the County Court for Essex exercised original jurisdiction any written pleadings were basically factual recitals, not couched in legal language, and with little attention paid to the essential allegations required by the
21 4 Rec. Mass. Bay (Part I) 26-27, 365; Col. Laws Mass., 1672 144. See also 2 Rec. Mass. Bay 187.
22 In Knowlton v. Ferry there is a ref- erence to "all Pleas and Evedence in the
case which are on file being heard, read and Considered." Rec. 196.
23 Rec. 84, 188. For the law see 2 Rec. Mass. Bay 208.
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various forms of actions at common law. If written pleadings were used at any time in the courts of lower jurisdiction of Hampshire, they probably did not differ substantially from those used in Essex County.
In the causes heard by the commissioners as a "County Court" a substantial number of actions which had been entered were with- drawn before trial; in some a notation was made that the parties had agreed between themselves. No such wholesale withdrawals ap- pear as to courts held in other capacities.24
As to the trial, with one or two exceptions, all civil actions were tried by jury until March 1654/5-six jurors constituting the jury. The wording of the various authorizations and commissions leaves some question as to whether or not jury trial could have been dis- pensed with without the consent of the parties. In the causes tried in 1659-1662 by the commissioners exercising the power of a County Court a jury of twelve was used. Apart from these sittings, no use of juries in civil cases appears in the Record after March 1654/5, with one exception in 1688.25 John Pynchon, as magistrate, was, of course, authorized to hear and determine causes without a jury. In a few instances causes were referred to arbitrators rather than tried by a jury or the court, although it might still be necessary to bring an ac- tion to enforce the award of the arbitrators.26 However, in a Decem- ber 1639 action for slander plaintiff put it to the inhabitants present whether "it were fitter to be heard by a private refference below in the River, or tryed here publikly by a Jury." The general vote of the plantation was that, seeing the matter was public, it should be pub- licly heard and tried at Agawam by a jury.27
While the manner of summoning jurors does not appear from the Record, it seems probable that the statutory norm was followed -- at least after the establishment of the office of clerk of the writs. This norm contemplated that the clerk of the writs, in convenient time before the sitting of the court, send a warrant to the constable of Springfield to give timely notice to the freemen of the town to choose as many able and discreet men as the warrant required for jury duty. Those so chosen were warned by the constable to attend the court and return of process was then made by the constable to the clerk of the writs.28 Prior to the establishment of the office of clerk
24 1 Hamp. Cty. Probate Ct. Rec. 3, 7, 8, 11, 14; Rec. 85. Cf. Rec. 164.
25 Bancroft v. Moore, action of review in May 1688. Rec. 207. The entries con- tain no reference to a jury foreman, al- though foremen were used in the Salem courts, for one, as early as 1636.
26 Rec. 8, 61, 78. See also the reference of Thomas Burnam's case and Cooley v. Webb. Ibid. 77, 79.
27 Rec. 4, 5.
28 See title "Juries, Jurors" in the vari- ous printed laws.
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of the writs it seems likely that the constable was directed by war- rants from William Pynchon to warn jurors to appear. In the earli- est period, since courts and town meetings appear to have coalesced, jurors may even have been chosen from those present at such gather- ings without the necessity of a warrant. For the period when the commissioners for Springfield and Northampton sat jointly such warrant may have issued by the recorder of the "county," since jurors were drawn from several towns and the recorder was in effect the clerk of the court. At a court held at Northampton in March 1662, the constable of Hadley was fined twenty shillings for not returning the warrant for summoning jurymen (presumably to the recorder), but the fine was rebated.29
The jurors appearing in court were impaneled and sworn truly to try between party and party. The County Court records indicate that a juror warned to attend who failed to appear without justifi- able cause would be fined. The following form of oath for petty jurors appears in the laws and was probably used-at least after the printed laws were available:
You Swear by the Living God, that in the Cause or Causes now legally to be committed to you by this Court; You will true Tryal make, and just Verdict give therein, according to the Evidence given you, and the Laws of this Jurisdiction: So help you God, etc.30
By virtue of an early law of the colony either plaintiff or defend- ant might challenge any juror. If the challenge was found just or rea- sonable by the bench or the rest of the jury, as the challenger might choose, it was to be allowed and tales de circumstantibus impaneled in room of those so challenged. In one 1649/50 case four jurors were thus challenged.31 Until May 1647 it was not lawful to choose non- freemen as jurors, but by force of circumstances this law was not strictly regarded at Springfield. In fact it was not until the law was changed to permit nonfreemen who had taken the oath of fidelity to be jurors that William Pynchon was authorized to make freemen in Springfield "of those that are in covenant and live according to their profession." 32
The colony laws specifically defined the function of the jury to "finde the matter of fact with the damages and costs," according to
29 1 Hamp. Cty. Probate Ct. Rec. 10. For later fines by the County Court see ibid. 78, 134, 140.
30 See the "Petty-Juries Oath" in the Presidents and Formes in the several volumes of printed laws. For the fines see
1 Hamp. Cty. Probate Ct. Rec. 58, 125, 156.
31 Rec. 37. Cf. the offer of liberty to except. Rec. 10. See title "Tryals" in the printed laws.
32 2 Rec. Mass. Bay 197, 224.
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the evidence of the parties. The judge was to declare the sentence or to direct the jury to find according to law. If there were matters of apparent equity, as the forfeiture of an obligation, breach of cove- nant without damage, or the like, the bench was to determine such matters of equity. The jurors, in all cases where the law was obscure so that they could not be satisfied therein, had liberty to present a special verdict, but no such verdict appears in the Record.33
Little appears in the Record as to the details of trial procedure. Presumably plaintiff presented his case first. Such presentation might entail a statement of the plaintiff's case to the court or jury, followed by the production in court of witnesses, the production of deposi- tions of witnesses not present in court, and the production of docu- mentary evidence such as agreements, bonds, notes, and account books. (No instance of profert and oyer of documents appears in the Record nor in the other court records examined.) It is doubtful whether plaintiff was allowed to testify in his own behalf. The re- quirement of two witnesses, mentioned in connection with criminal procedure, is also referred to in civil cases. Witnesses were probably summoned by the constable (or perhaps the marshal) ; the summons (or attachment) was at first issued by William Pynchon and later by the clerk of the writs or John Pynchon, as magistrate. No form of such summons was contained in the Presidents and Formes until 1685. A witness was not required to appear unless paid his travel ex- penses by the party calling him; a witness, so paid, who did not ap- pear was liable to pay the damages of the parties.34
By law any magistrate or commissioner so authorized by the Gen- eral Court might take out of court the testimony of any person of fourteen years of age or over, of sound understanding and reputa- tion, in any civil action. (The magistrate or commissioner retained the deposition until the court met or turned it over to the clerk of the writs to be recorded so that it might not be altered.) However, if a witness lived within ten miles of the court and was not disabled by sickness or other infirmity, his testimony so taken could not be received or made use of unless the witness was present to be further examined about it.35 This proviso indicates that witnesses were sub- ject to cross-examination. (How such cross-examination could be preserved for appeal purposes is not apparent.) The 1650 and 1652 laws requiring evidence in writing in civil causes have already been noted. After the plaintiff had presented his case, the defendant was presumably given an opportunity to present his witnesses or other
33 See title "Juries, Jurors" in the printed laws.
84 Col. Laws Mass., 1672 159.
35 See title "Witnesses" in the printed laws and 5 Rec. Mass. Bay 489-490.
PROCEDURE IN CIVIL ACTIONS 183
proof; a defendant, to a limited extent, might be allowed to testify in his own behalf. Trial might even be adjourned to permit a party to obtain and offer further evidence.36
While apparently no depositions used in any case entered in the Record have survived, an indication of the format used about 1656 may be obtained from the depositions in Parsons v. Bridgman, taken before John Pynchon, Elizur Holyoke, or some of the Northampton commissioners. The form is substantially that used in the courts of the Bay.37
Presumably witnesses gave testimony under oath. The form found in the printed laws, referred to in connection with criminal procedure, was probably used.38 While perjury was punishable un- der the colony laws only in capital cases, in 1643 John Leonard was removed as constable "as a mark of disfavor for swearinge to a lie" in testimony given in a civil action.39
There is no indication that any party appeared by counsel. In one case a Boston plaintiff appeared by an "Atturney"-a use of an at- torney in fact sanctioned by the commonwealth laws and found in many cases on the county court level in Suffolk, Essex, and Norfolk. The parties themselves must have introduced and offered evidence, questioned witnesses, argued points of law, and possibly made sum- mations. Under these circumstances it is remarkable that more liti- gants, unlearned in the law but convinced of the justice of their cause, did not end up by being committed for contempt.40 Presum- ably, as noted earlier, plaintiff was required to satisfy the burden of proof by "sufficient" evidence.
The Record fails to indicate the extent to which the court in- structed juries as to the applicable law. Any jury or jurors, not clear in their judgments or conscience, had liberty under the colony laws to advise in open court with any person they thought fit to resolve or direct them, but the Record reveals no instance in which such ad- vice was sought. In no case is a directed verdict found. Nor is there found any case, while the commissioners exercised the powers of a County Court, in which court and jury differed as to their verdict so that neither could proceed with peace of conscience, requiring deter- mination at a higher level of the judicial hierarchy. In no case, ap- parently, jurors had difficulty in reaching a unanimous verdict.41
36 Rec. 8-9, 23, 72. Cf. the 1665 law which would require all pleas to be made and all evidence presented to the jury without any delays. 4 Rec. Mass. Bay (Part II) 280.
87 See note 9 above.
38 See "Witnesses Oath" under Presi- dents and Formes in the printed laws. 39 Rec. 23.
40 1 Hamp. Cty. Probate Ct. Rec. 4; Rec. 191.
41 See title "Juries, Jurors" in the printed laws.
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While the colony laws contemplated declaration of the sentence by the court following a jury verdict, the Record contains only the jury verdicts without any notation of declaration of sentence or en- try of judgment upon the verdict. This was not peculiar to western Massachusetts. Lechford, in his comments on judicial procedure in the Bay, noted that the verdict taken and entered was "also called the judgment." Most of the verdicts or judgments were, in effect, that plaintiff recover a debt or chattels or receive damages. A few contemplated what amounted to specific performance. In slander cases an acknowledgment by defendant of the tort might constitute part of the judgment. In an early case the jury deferred its verdict until impartial men viewed some work and determined whether it was done according to bargain. A jury sitting until near midnight was granted leave to bring in its verdict by the next evening. The 1648 Laws and Liberties provided that every judgment in any court be recorded "with all substantial reasons," but the Record rarely in- dicates the grounds of the judgment.42
While the various commissions made no reference to awards of costs of court and the laws provided no comprehensive schedule of such costs, costs of court as well as charges were awarded in a sub- stantial number of cases. In view of the small amount involved in most actions appearing in the Record an award of costs might con- stitute a relatively significant item. For instance, in one 1679 case plaintiff was given judgment for thirteen shillings, sixpence plus thirteen shillings costs. In a number of cases costs were awarded in a lump sum. However, some of the individual items of costs and charges found in the Record are as follows: entry of action, three shillings, fourpence, and later, three shillings, sixpence; summons and service thereof, one shilling, twopence; attachment and service thereof, one shilling, sixpence; attendance of plaintiff or defendant, two shillings per diem (usually increased if the party was required to travel any distance) ; witness fee, one shilling per diem (the col- ony laws provided for a fee of two shillings per diem unless the wit- ness lived within three miles, in which case the fee was one shilling, sixpence) ; and summons for witness, threepence. In one case plain- tiff was admitted to try his case in forma pauperis, although not pro- vided by the laws at the time.43
Most of the verdicts or judgments were expressed in terms of specie. However, after 1660 the Record contains a scattering of cases in which the judgment was expressly made payable in Indian corn,
42 Plaine dealing: or, News from New England (ed. J. H. Trumbull, 1867) 67;
43 Rec. 37, 170.
Laws and Liberties Mass. 46; Rec. 4, 22.
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wheat, tar or pork; in most cases it appears that the debt sued for had been incurred in forms of such commodities. This probably reflects a 1654 law that "all Contracts and Engagements for Money, Corn, Chattel [cattle] or Fish, shall be satisfied in kinde according to Cove- nant ... and in no case shall any Creditor be forced to take any other Commodities for satisfaction of his debt." 44
Few cases make reference to the grant of execution upon a judg- ment. The form of one such warrant subscribed by William Pyn- chon in 1640 and directed to the constable is set forth in the Rec- ord.45 Later laws provided that the warrant be signed by the clerk of the writs, that it be directed to the marshal, who was to make re- turn within five months, that it take a prescribed form, and that it not issue until twelve hours after judgment entered, except by spe- cial order of the court. While the early writ referred to directed the constable to attach the body of defendant, later practice apparently permitted body attachment only if the judgment could not be satis- fied from the defendant's goods or lands. Exempt from execution were such necessary items as bedding, apparel, tools, arms, and house- hold implements. By law a judgment debtor without property was not to be kept in prison but at the requirement of the creditor might be sold into service to satisfy the debt.46 In the case of an at- tachment of goods or lands of a defendant out of the jurisdiction, judgment was not entered until the next court, if defendant did not then appear. Execution was not granted thereon before plaintiff had given security to be responsible to defendant if he reversed the judgment within one year or such further time as the court should limit.47 In cases where attachment was resorted to, execution had to be taken out within a month after judgment or the attachment was void, unless the court saw cause to grant respite of execution. Whether execution had to issue within a year and a day after judg- ment entered does not appear; the laws made no provision for revival by writ of scire facias.
Provision was made in the various commissions and in the laws generally for appeals to a higher court from the court at Springfield. However, it was not until the end of 1684 that an appeal is found entered-to the County Court at Northampton. In this case appel-
44 Rec. 99, 167, 174, 192, 204, 211, 215, 220-221, 226, 229. For the law, see Col. Laws Mass., 1672 120-121.
45 Rec. 11.
46 Col. Laws Mass., 1672 3, 6, 30, 102, 104, 313, 320. Cf. the execution, dated Springfield, September 26, 1678, signed by John Holyoke, recorder of the County Court for Hampshire, in Partrigg v.
White and the October 12, 1678 return of the constable of Hatfield. Bliss, An Ad- dress to the Members of the Bar of the Counties of Hampshire, Franklin and Hampden at Their Annual Meeting at Northampton, September 1826 (1827) 78.
47 Col. Laws Mass., 1672 7, 144; 4 Rec. Mass. Bay (Part I) 365; Rec. 174.
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lant Obadiah Abbee and his brother, according to law, bound them- selves in the sum of five pounds each to the County Treasurer for Hampshire and to appellee to prosecute the appeal to effect at the next County Court at Northampton and to satisfy all damages in not having execution issue according to the judgment. Failure to pros- ecute to effect also entailed a forfeiture of forty shillings to the county. This appears in the only other appeal taken prior to the Second Charter, a County Court entry of April 23, 1690 noting that appellant forfeited his bond of three pounds to defendant and forty shillings to the county.48 Appellant was also required to give in to the clerk of the writs six days (changed to fourteen days in 1685) be- fore the County Court sat the grounds and reasons of his appeal briefly in his or his attorney's hand, without reflecting on the court or parties by provoking language. The clerk was obliged to transmit these reasons to the court to which the appeal was taken and to give a copy to appellee, if desired. Appellee might file an answer to the reasons of appeal.49 Some copies of such reasons of appeal and an- swers thereto are to be found in the files of the County Court of Es- sex. An examination of these files shows much greater resort to ap- pellate review of the judgments of magistrates than in Hampshire.
While at one time the General Court declared that appeals were to be accounted in the nature of a writ of error, the record on appeal bore no relation to the formalized common-law record found in Eng- lish practice and a bill of exceptions was not used. The records on appeal from the judgments of a magistrate or commissioners to the County Court for Essex indicate that at this level the record con- sisted of an attested copy of the judgment, verdict, or proceedings below, attested copies of the depositions taken by the parties and documentary material received in evidence (such as copies of agree- ments or town orders) , copies of the process, and copies of the bills of costs. A certificate by the magistrate explaining or justifying ac- tion claimed to constitute error might accompany the record.50
An early law provided that, in civil actions, if the party against whom judgment was given should have any new evidence or other new matter to plead, he might have a new trial in the same court upon a bill of review. Several such cases appear in the Record enti- tled actions of review, two involving actions heard in the first in- stance at Northampton. Another is found in the supplemental Reg-
48 Rec. 190-191; Rec. Cty. Ct. Hamp. 126 (The case, James Blinn (?) v. Sam- uel Lamb, does not appear in the Rec- ord.) For the law see Col. Laws Mass., 1672 3-4.
49 Col. Laws Mass., 1672 3.
50 2 Rec. Mass. Bay 279; 2 Rec. and Files Quart. Cts. Essex Cty. Mass. 21-22, 138-140, 298-299, 436-437; 3 ibid. 126- 130, 404, 444-445; 4 ibid. 6-7, 52-53, 54- 55, 216-217, 335-337; 5 ibid. 13-14, 19, 49- 51, 179-181.
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istry of Probate material reviewing and sustaining an ex parte verdict.51
In the early years at Agawam the parties in one case agreed to a new trial by the same jury. In another William Pynchon offered to undertake to have plaintiff Moxon, who had judgment against John Woodcock, refer the matter to arbitration by "indifferent men" any- where in the River, if Woodcock would put up security to answer such damages as should be awarded; in the alternative, Pynchon of- fered a writ of error to have the matter tried again by a new jury. Pynchon also offered a new trial by writ of error to Woodcock in an action in which a jury had found against him.52
The slight use made of appeals and reviews indicates that neither was regarded as a significant procedural device in the courts on the lower jurisdictional levels in western Massachusetts during the First Charter. In this connection it should be noted that the laws pro- vided in a statute of jeofailes provision that "no Summons, Plead- ing, Judgement, or any kinde of proceeding in Courts or course of justice, shall be abated, arrested or reversed upon any kinde of cir- cumstantial errours or mistakes; if the person and cause be rightly understood and intended by the Court." 53 Such a provision could serve as a damper upon appeals and reviews.
1686-1692. THE INTERCHARTER PERIOD
During the period between the First and Second Charters the Record reflects no sharp cleavage with the past from the standpoint of procedure in civil causes despite the passage of several laws af- fecting such procedure. However, it should be noted that, after the overthrow of Andros, the Governor and Council in June 1689 de- clared that all laws in force in the colony on May 12, 1686, except those repugnant to the laws of England, were again the laws of the colony.54
Both summons and attachments continued to be used for the commencement of actions, although greater use was made of the lat- ter process. Since no new forms were provided by law, it seems likely that the forms in use were continued. Apparently the office of clerk of the writs was discontinued under Dudley for a law provided that original writs in small actions were to issue under the hands and seal of such as were to try them.55
Process in most cases continued to be served by the constable,
51 Col. Laws Mass., 1672 152; Rec. 22,
77, 84; 1 Hamp. Cty. Probate Ct. Rec. 14.
52 Rec. 8, 10, 13.
53 Col. Laws Mass., 1672 7.
54 1 Laws N.H. 294.
55 Ibid. 104.
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although the marshal might serve attachments and writs of execu- tion.56 References in schedules of fees established by the laws and in bills of costs indicate that plaintiffs were still required to enter their actions with the court.57 A defendant who failed to appear was still called three times by the constable. In the case of an attachment the court might proceed to an ex parte hearing and judgment if defend- ant, having been warned by a writing left at his usual place of abode, failed to appear, but execution might be delayed if defendant was out of the jurisdiction. In one 1691 case, no return of the attachment was made but defendant appeared and produced an acknowledg- ment under the constable's hand of receipt from defendant of the sum demanded.58
A March 3, 1686/7 act (An Act Impowering Justices of the Peace to Decide Differences not exceeding forty shillings), in the case of nonappearance of a defendant, summoned upon complaint made to a justice, authorized the issuance of a warrant of contempt directed to the constable.59 While this act is the prototype of a law passed un- der the Second Charter, no use of a warrant of contempt is found during the intercharter period.
During this period no civil cases coming before John Pynchon were tried by a jury, although the March 1686/7 act allowed a jury if in matter of fact either party demanded it, at the cost and charge of the party so desiring. In one action of review, in May 1688, a jury of twelve was summoned and returned by the constable but the parties, reaching a settlement, did not proceed to trial.60 How the jurors were chosen does not appear in the Record; the aforesaid act au- thorized a justice to "Summons a jury." The Record reveals no re- sort to arbitration during the years in question.
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