Jany. 8th. 1761.
Last Monday, had a passionate Wrangle, with Eb. Thayer, before Major Crosby. He called me, a petty Lawyer. This I resented.
The Defendant Niles appeared by 10 o’clock, and had his Costs allowed, is:6d, for attendance, but nothing for Travel, tho he lived 8 miles off. Upon the first Appearance of the Defendants Daniel White, and Neh. Hayden, the Justice pronounced that they should have no Costs, altho no Plaintiff appeared—because they did not appear by Eleven O Clock. Now in answer to this, I say, that he never made it his Rule to allow no Costs to Defendants, appearing after 11 when no Plaintiff appeared. He has made it his Rule to call out Actions, when the Plaintiffs have appeared, upon the Non Appearance of Defendants after waiting an Hour for them. And he has made it his Rule, to allow Costs to defendants appearing at the time or within the Hour upon the Non Appearance of the Plaintiffs, after waiting an Hour for them. But I believe, he never made it his Rule till that day, to refuse Costs to Defendants appearing soon after the Hour expired when no Plaintiff appeared—so that, had it been certain that these Defendants did not appear within two Hours, he would not have been obliged by any Rule of his own Practice to refuse them Costs. But admitting his Rule had been established and absolute to allow no Costs to any Party not appearing within the Hour—It was not clear in this Case, that the Hour was out. By Captn. Thayers Watch indeed and by mine, it was after 11. But my Watch was set by Guess that morning, and by the Justices own Dial it was not yet Eleven, and by Athertons and several other Persons Judgment of Time, it was not yet Eleven; and some Allowance ought to be made, for the Difficulty of the Weather and the Travelling.
But thirdly, the Justice ought not to establish any such unalterable Rule. The Law has made Provision that the Parties shall be paid for the whole Days Attendance. And these Defendants lived at <
seven> 9 or 10 miles distance and could not therefore without great Difficulty, in that severe Weather, and almost impracticable Travelling, have reached the Justices House, by ten O clock:
And to refuse them Costs for Non Compliance with such a rigorous Rule, when those suits had been commenced by Deputy Sheriffs, some of the suits vexatious, and all the Writts abateable; after they had been compelled to ride thro Cold and snow, so many miles, wasting their own and their Witness[es’] Time, and bearing their own Expences, when no Plaintiff appeared and no Body for him dared to enter his Actions; was a Peice of Oppression like that of the Bashaws in Turkey.