manifold duties performed by the justices, whose functions included those now delegated to the county commissioners, directors of the poor and auditors as well as those pertaining strictly to their judicial office. They granted applications for taking up land, took acknowledgments of deeds, and exercised a general supervision over the churches, the repair of the highways, the maintenance of fences, the sale of the time of bound servants, and even recorded the earmarks of cattle. The expenses connected with the sittings of the courts were supposed to be met by the fees and fines imposed, but these were not always easily collected and the Upland justices record in one place that they are "in great want of some meanes to pay and defray their necessary charges of meat and drinke.' The court at the Whorekill, the name of which had been changed to Deal, made this clever bargain: "It is agreed and Concluded upon by the Court and Alexander Moulston as followeth; that from the first day of this moneth the said Alexander Moulston shall have to his owne proper use all the Amacements that doe from that day becom due to the court for one whole yeare; and that the said Alix Moulston doe Ingage to find and allow the Justices of this Court for the time being and there friends and strangers with house roome and diett And one gallon of Rum and wine for every Court during the said year."2 Actions for the recovery of debts, for assault and battery and slander predominate. It would seem that the judges sometimes found it necessary to appeal to their own tribunal, as the following case shows:— "Justice Otto Ernest Coch Plt. "Moens Petersen Staecket Deft. { In an action of slaunder & defamat. "The plt Complaines that this deft. maliciously has defamed and most highly slaundered him in his Honor & reputation 1 Records of the Court at Upland, 160. 2 Sussex Records (Turner), 69. by terming him a hogh theef, desires that this deft (if hee or any others can) will prove ye same, or otherwayes that hee may bee punisht according to Lawe. "The deft sayes and protests, that hee never Knew heard or sawe, that this Plt was guilty of any such fact, and that hee to his knowledge never sayed any such thing, but if that he hath sayed itt (as the witness doe afirme:) that itt must haue been in his drink, hee humbly desires forgivenesse, sence hee finds himselfe in a great fault; "Hans Jurian, william orian & andries homman sworne in Cort declare that they haue heard moens Peterss Staecket say in full tearmes & substance, Mr. Otto is a hogh theef of ye one & andries Boen of ye other syde & further say nott; "The Court haueing heard ye Case doe order that ye deft: shall publicqly in open Court declare that hee has wrongfully falsly & malisiously slaundered & blamed this plt and doe further fyne him for an Example to others to pay the sume of one thousand gilders wth the Costs; "The deft. did willingly in open Court, declare as above & humbly desires forgivenesse & prayes that ye fyne may bee remitted, Upon ye Intercession of Justice Otto Ernest, the Cort did remit ye fyne aboved." 1 Judgments are entered sometimes in guilders and stivers and sometimes in pounds of tobacco, wheat or other products. In one case at Upland the court ordered the defendant to pay the plaintiff "twenty gilders in wheat and twenty six in pompkiens." A case, showing the primitive practice, from the commencement to the termination of a suit, is that of— 1 Upland Court Records, 180. In another case of slander the court fined the defendant and ordered "that ye defendant openly shall declare him selfe a Lyar," page 176. "In the Norman Custumal it is written that the man who has falsely called another 'thief' or 'manslayer' must pay damages, and, holding his nose with his fingers, must publicly confess himself a liar." Pollock and Maitland History English Law, II, 537. 2 Records of the Court at Upland, 156. "James Sanderlins plt agst “John Edmunds of maryland Deft "The plt demands by bill from this deft. ye sume of 1200 lb of good & merchandable Tobbacco & Caske to bee paid in Great Chaptank River in maryland on all demands after ye 10th of october 1675; as by the said bill under ye hand and seale of the deft bearing date ye 9th of June 1675; & produced in Court did more att Large appeare, the plt further declaring & prooveing in Court that hee hath made severall Legall demands of the sd debt, and ye the same was not paid to this day, desiering that this Cort would bee pleased to grant him Judgemt agst ye deft and to allow of his attachment Laid upon a certaine great Boate or shiallop & appurtenances now att upland-That the same might bee publicqly sould and the plt payed his Just due wth ye Costs; "mr walter wharton one of the witnesses to ye sd bill being sworne in Court declared that hee was prsent and did see John Edmundsen signe seale and deliver, the abovesaid bill of 1200 lb of Tobacco, to James Sanderlins; "The Court haueing Examined into ye businesse, and finding the Case to bee Just, did order that Judgment bee Entered against the deft: John Edmunds, for the paymt of ye sd. 1200 lb of Tobacco, or the True vallue thereof, and alloweing of ye Plts attachmt doe hereby order the vendu master, to sell the boate & appurtenances, this Courtday to the most bidders, out of which hee to pay James Sanderlins his debt wth ye Costs, and the overplus to bee returned to John Edmunds or his order; "According to the abovesd order of Cort was this day being ye 12th of Novembr, by publicq outcry sould unto mr John Test, as ye highest bidder the boate & appurtenances for ye sume of six hundred and twenty fyve gilders; to bee paid in New Castle with merchandable Tobbacco & Caske dutch wth & tarr att 8 styvers pr lb or wth merchandable wheat at 5 gilders pr schipple att or before ye Laest of march next Ensuing, as by the Conditions of sale upon ye fyle att Large doth & may appeare; "James Sanderlins bound himselfe as security for ye true payment of ye aboves 625 gilders according to the conditions"1 As these proceedings occurred all on one day, the parties could not complain of the delays of the law. 1 Records of the Court at Upland, 111. What would appear to be the first recorded action for negligence is entered as follows on the New Castle records: "Mounes Powell plt "Hans Pietersen Deft "The plt declares that this deft about one Jeare sence was the occascon that he the plt lost the use of his boddy so that he was & is not able to worke for his wife and family and therefore humbly craves that the deft may be ordered to hire a servant for him until he bee restored to health:-The court having heard the answer of the deft and finding by the evidence sworne in court, as also by the plt owne confession that itt was an accidental mischange, doe order that the deft shall pay the curing to the doctors bill this date and moreover Pay unto the plt in regard of his smart and Payne wch the plt hath suffered the sume of one hundred and fifty gilders and pay cost of sute."1 In another case in 1679 a mortgage is foreclosed:— "John Moll Plt "Robberd Hutchinson Deft "The Plt declares that one Daniel Linsy being his debtor the sume of 847 lb of Tobacco & Caske did on ye day of 167; mortgage Trasport & make over unto this Plt a Certain peece of Land Lying in Appoquenemen Creeke, above ye old Landing wch sd mortgage and Transprt was to bee void upon ye payment of ye sd 847 lb of tobb att ye time in ye sd deed Exprest, as by the sd mortgage bearing date as above more att Largedid appeare and that this deft Robberd hutchinson, haueing sence bougt the sd Land from ye sd Linsey did promise to pay ye Plt his sd debt wch being nott performed, The Plt is now forced to Commence his action in Lawe, and humbly Craues this Corts order so that hee may haue ye forfeiture and benefitt of his aforesd mortgage and that hee may bee put in peaceable Possession of the sd Land according to sd deed. The Cort haueing Examined the premises doe Judge that according to Lawe and the sd deed the Land abovesd is forfeited and belonging to ye Plt and therefore do order that the Plt bee put in Lawfull Possession thereof."2 1 Records of the Court of New Castle, 9. A case that perplexed the justices at Deal involved a gambling contract. "Henry Bowman Plt, James Welles and John Newall defts. The Plt declare that the defts did contract & agree wth him to Run A horse Race for three thousand pounds of Tobacco; and that he the said Plt ded wine; the deft pleaded that the Contract was not confirmed, the cause being debated on both sides and severall witnesses Examined the Cause was Referred to a Jurey; wch went out and brought in there verdict; that they finde for the plt with Cost of suit and one shill Damages; and the defts arest the Judgmt of the Court & craved an Appeale to have the Cause to be Tryd at the next Gennarall Court of Assisses at New York befor the Honorable Governor and Councell; the vallow being under twenty pounds the Court Could not agree weather it was appealeable or not; and soe refered the same untill the next Court; there being sume thing dubous in the Testament of the Wittnesses."1 2 A competent authority has remarked, "the whole method of practice was rather a dispensation of justice, as the idea of it existed in the heads and was tempered by the hearts of the judges, than the administration of any law written or unwritten.' And yet when we remember that these men were all laymen, pioneers on the border of the wilderness, whose true business was to clear the forests and till the soil, and whose judicial office was a burdensome duty, performed at a considerable sacrifice of time and money in the interest of their little communities, that they were without books or forms and sometimes without blank books in which to write their records, we may wonder that they did so well. The justices of these courts as members of the provincial council, as assemblymen, and as judges, played their part in the "Holy Experiment" heralded 1 Sussex Records (Turner), 57. 2 Smith's History of Delaware County. 3 VII Pennsylvania Archives (2d Series), 777. |