[This is the third in a series of posts on the case of Pierson v. Post. The series begins here.]
Proceedings in the Justice’s Court
The limited view of proceedings in the trial court from the published opinion has long frustrated teachers who like to have their first-year students consider how lawyers shape the raw facts of a dispute into a cause of action. Recently, Angela Fernandez of the University of Toronto Faculty of Law discovered the “judgment roll” in the case and posted her transcription on the website of the Law and History Review. You may peruse it there, view pictures of the original, and read her article interpreting the “Lost Record” and several scholarly comments.
Pierson and Post had their altercation on December 10, 1802. Before the month was out–on December 30, in fact–their dispute was before John N. Fordham, a Justice of the Peace. We now know that Post claimed an injury of up to $25, the maximum under the streamlined procedures of the Twenty-Five Dollar Act of 1801. Apparently Post did hire a lawyer to write his complaint, for, as Charles Donahue has observed, it was too well-framed to have come from a lay pen. At trial however, the litigants appeared “in their proper person”–that is, without representation by counsel.
The judgment roll contains nothing like a transcription of the proceedings, but it does reveal a few more nuggets about the trial. It states that Fordham convened his court in a private residence, “the house of Hugh Gelston,” which was located in Southamption in Suffolk County. In keeping with the Twenty-Five Dollar Act, the constable had summoned a panel of twelve veniremen, from which Fordham selected a jury of six by drawing names out of a box. Seven witnesses were summoned to testify.
Further, although we do not know exactly how Post made his case, we do know from his declaration that he alleged that Pierson acted “maliciously”--that is, for the purpose of harming Post, and not for some other reason, such as a desire to kill a verminous animal. The latter would seem to have been a good argument for Pierson, because “vermin” constitute a subcategory of animals ferae naturae that are always nuisances, and incapable of being owned by anyone. Moreover, as recently as 1791, Southampton had placed a temporary bounty on foxes, which were carrying off the chickens of the town.
This allegation, the writ Post obtained (trespass on the case), and the facts of the underlying dispute would seem to point to a theory of intentional tort. As Charles Donahue put it, “the point of Post's suit against Pierson is not that Pierson took Post's fox. The point is that Pierson interfered with the hunt.” Besides, if “the gist of the action were Post’s possession (and hence ownership) of the fox, the wrong form of action was used. It should have been trespass, not trespass on the case.”
It happens that under the common law Post would face a possible fatal obstacle if he framed his case as an intentional tort. If he had been hunting for commercial reasons–as the plaintiff did in the great case of Keeble v. Hickeringill (Q.B. 1707)–then he would have suffered a cognizable harm. But Post was hunting for recreational purposes, and the common law refused to protect “things of mere pleasure and delight” (such as recreation). If Fordham knew his law, Post might have lost his case.
Why wasn’t this obstacle fatal to Post’s suit? One very likely possibility was that in fact Fordham did not know his law. Although we know nothing about him, other than that he was a Southampton man, a legal commentator generally assumed that New York’s JPs were “plain people, unacquainted with legal learning.” We have no reason to think that Fordham was an exception. Thus, Fendandez suggests that he and the jurors might well have been “inclined to look at what happened, take a more common sense approach, and give Post a remedy without worrying too much about what category of law to attach it to.”
On whatever theory, the jury found for Post “seventy-five cents for his damages besides his costs.” Those costs Fordham set at $5 (about $100 today), which was the maximum under the Twenty-Five Dollar Act. Seventy-five cents in 1802 is roughly the equivalent of fifteen dollars today. A nice fox pelt was worth about $1.