To remedy the inconvenience and expense occasioned thereby, on May 22, 1650, the Bay colony provided,—

"Whereas, in suites and acctions brought into Courts betweene party and party, sometimes the plaintiffe, and sometimes the defendant, and sometimes neither of them, doe attend to answer when they are called to prosecute or answer, which hath binn to long connived at by the magistrates, and much time lost in sending to seeke them out, or waite their coming in, whereby the countryes chardge is encreased, and the magistrates, jurors, wittnesses, and others abused, contrary to the laudable, reasonable practize and custome of all Courts in our native countrje, and other countrjes knoune vnto vs, itt is therefore hereby ordered and enacted, that if any plaintife, he or shee, have entered any action to be trjed in any Courte, or which comes orderly into any Courte by replevin, appeale, or by the disagreement betweene the magistrates and jury in an inferior Courte, and doe not by him or hirself, or by their attorney, make their appearance, and prosecute their action jmediately after they have binn three times called in the Courte by name, after the first forenoone of the Courte, that then they shall be nonsuited; and if plaintife or defendant appeare vppon such call, they shall have their costs graunted by the Courte against him that doth not appeare; and if afterwards both partjes doe agree to trye their case the same Courte, they shall be allowed so to doe, the plaintif paying halfe so much for a new entry as he did before; and if any person presented by the grandjury for any offence, or somoned by a magistrate to answer any crime, doe not, vppon somons, appeare at the time appointed vppon the third call, as aforesajd, he or shee shall be proceeded against for contempt, except he or shee be restrajned or prevented by the hand of God." 4 Records of Mass. (Part I) 4.

This was in substance reënacted by sections 31 and 35 of the Cutt code of general laws. At any rate, from 1650 to the present hour this has been in most respects the customary law of New Hampshire. Almost every day in court the sheriff can be heard proclaiming, "John Doe, John Doe, John Doe come into court and answer to Richard Roe or your default will be recorded," or nonsuited," as the case may be; and in the same way offenders who have been bound over to the higher

court, as it is termed, are called, and their recognizances declared forfeited. But there is no evidence that the provision in relation to the payment of half-entry fee was ever recognized in New Hampshire. But by the act of June 21, 1701, when the default was taken off, before the jury were dismissed, the defendant was compelled to pay "down" to the plaintiff the "cost he hath been at so far," and then the plaintiff was compelled to "pay for entring the Action anew."

The process of the courts was simple. On August 23, 1630, the general court provided as follows:

"It was ordered, that, in all ciuill accons, the first pcesse or sumons by the beadle or his deputy shalbe directed by the Gouor, or Deputy Gounr, or some other of the Assistants, being a justice of the peace; the next pcesse to be a capias or distringas, att the discrecon of the Court." I Records of Mass. 74.

The result and the remedy for this were given on November 11, 1647, in these words:

"For ye pventing & according of long, tedious, & confused pleadings in civill actions, & ye many complaints of defendants, alleadging yt they undrstand not wt to answere to, nor wt witnes to sumon, till they appeare in Corte, as also for ye bettr pserving ye records of all actions tryed in all Cortes of iustice wthin ys iurisdiction; & lastly, yt all actions of review may be ye bettr discerned & iudged, this Corte doth hereby ordr, yt all plantiffs or their atturnyes in civil actions shall hencforth draw up a declaration, in a faire & legible hand, & shall delivr it to ye recordr or clarke of ye Corte wr ye cause is to be tryed 3 dayes at least before ye same Corte, wrby ye defendt may have time also to put in his answere in writing, as above, & to sumon his witnesses according to ye nature of ye declaration; & all actions shall be entred before ye end of ye first day of ye Corte." 2 Records of Mass. 219.

The practice in Massachusetts improved step by step until about 1721, when, as a rule, the declaration appeared in the writ; but this in general had been the practice in New Hampshire from a very early period. In Judge Smith's MSS., entitled "Old Records," he collected about sixty cases in which the declaration appears as a part of the writ prior to the estab

lishment of the Cutt government, and quite a number were between that time and 1692. He also collected others ranging from 1649 to 1707. These show the general uniformity of the practice here, but it was not compulsory save only under the Cutt code.

Richard Waldron, by reason of his personal interests and relations, was a Massachusetts man. Under his lead Dover became famous in the olden times for the alacrity with which its people at the beck of the Bay colony pursued the witches. At some time in 1656, Robert Coutch called Goodwife Jane Walford a witch, whereby she was brought into the court of associates "upon suspicion of being a witch." As we now term it, she was allowed to go upon her own recognizance. On March 22, 1669, she brought an action for slander, laying her damages at one thousand pounds. The declaration is as follows:

"In an action of slander for saying that the said Jane was a witch & he would prove her one which is very greatly to her damage." Judge Smith's Old Records 78.

She prevailed, the jury giving her a verdict for five pounds and costs of court.

Coutch set a back fire by bringing an action for unjust molestation. The declaration was as follows:

“In an action of the case in unjust molestation in arresting him in £1000 action which he conceives not according to law but much to his prejudice & damage." Judge Smith's Old Records 78.

So far as I am able to ascertain, the Walford case, and that of Rachel Fuller in 1680, and perhaps one other, are the only ones in New Hampshire where any person has been molested on a charge of witchcraft. Yet tolerant Massachusetts commenced hanging witches in 1648, and kept on until the summer of 1692, when at a single term a man eighty years old was pressed to death for standing mute, nineteen were hung, nine were sentenced to death, and fifty more were imprisoned, and terrified into a confession of their guilt.

But New Hampshire was not stainless. The following order by Waldron, dated at Dover, December 22, 1662, needs no

comment:

"To the constables of Dover, Hampton, Salisbury, Newbury, Rowley, Ipswich, Windham, Linn, Boston, Roxbury, Dedham, and until these vagabond Quakers are out of this jurisdiction.

"You and every one of you are required, in the King's Majesty's name, to take these vagabond Quakers Anna Colman, Mary Tompkins, and Ahie Ambrose, and make them fast to the cart's tail, and drawing the cart through your several towns, to whip them upon their naked backs not exceeding ten stripes apiece on each of them in each town; and so to convey them from constable to constable till they are out of this jurisdiction, as you will answer it at your peril; and this shall be your warrant." 2 N. H. Hist. Col. 45.

To the shame of all New Hampshire men and women, this order was executed by the constables in Dover, but it was too infamous even for Walter Barefoote. By characteristic ingenuity he got these poor unfortunates out of the hands of the constables in Salisbury, and sent them in peace across the line. But this treatment was like the dew of heaven compared with that which the Quakers received in Massachusetts. There they were banished, their tongues bored with red-hot iron, and their dead bodies swung from the gallows. To the credit of the legal profession it must be said that no lawyer sat on the bench, nor in anywise participated at these trials. Had there been an educated bar, knowing the rights of their clients, and daring to maintain those rights and the rights of the jurors, the result might have been different.

Prior to 1649 a sort of trustee process was in use in the Dover and Portsmouth court. In 1649 we find the following process: "To the marshal of Dover or constable of Strawberry Bank

"You are required to attach the bark now in possession of Richard Cutts or John Cutts so as to bind the same to be responsal at the next court at Dover unto the complaint of Mr. Sampson Lane in an action of the case upon acct. if the said bark be John Cutts' or in an action of the case for judgment obtained by E. Savage if the barke be Richard Cutts and so make a true return hereof under your hand dat 1 (7) 1649. Per Curia W Aspinwall"

The return was as follows:

"Executed this attachment upon the bark according to the

tenor hereof by William Storer Marshall' Records 82.

A process in 1657 was as follows:

Judge Smith's Old

"Attach the goods of Mrs. Ann Mason Exx to Capt John Mason of London, decd. to the value of £25 the said goods and debts are recovered by Mr. Joseph Mason as atty to the said Ann Mason & now in the hands of John Goddard so as the same may be responsible to answer to the complaint of Edward Colcord the assignee of John M. at the next court to be holden at Dover in an action of the case for monies detained which is

due by bill from the said Capt. John Mason his agent Cap Walter Neale as appears under his hand."

The return is as follows:

"This attachment served upon the estate of Mrs Ann Mason in the hands of John Goddard according to the tenor of the warrant by me" Judge Smith's Old Records 76.

And this was more than sixty years before the double-barelled trustee act of May 13, 1718. N. H. Laws, Russell's ed. of 1726, pp. 122–124.

Account-books, shop-books, actions of account, and book debts, as they were termed, were in use in the Bay colony and in New Hampshire at a very early day.

The common form of an action of book account here in 1688 was by adding to the common form for goods sold and delivered the words, "as by the said plantiff's book of acct relative thereto being had more particularly appears." Judge Smith's Old Records 50.

In 1669 the defendant was required to appear at the next court of assistants to be held at Portsmouth the last Saturday of September next to answer in "an action of debt of about £16,, 3,, 8 or what shall appear justly due by book" &c. Judge Smith's Old Records 66.

In 1670 Thomas Mayne was attached to appear before the court of associates to be holden at Portsmouth or Dover" in an action of the case for a debt due by book to the value of £9,, 8,, 4" &c. Judge Smith's Old Records 66.

Jose v. Robie, in 1697, was for "goods received & money lent said Robie as will more at large appear by book in the trial of the case." Judge Smith's Old Records 65.