Title: (1814) September Declaration plea replication and TRANSCRIPT of

Evidence Presented in the Supreme Court. Joseph Baxter Simon Baxter

Defendents NORTON NB.John price – Plaintiff in an assault case.

Document type is: Legal Doc.

Authors:

Summary:Plaintiff awarded 55 pounds damagers.

Dimensions: 16 x 10

Pages: 5

Document Housed at: Saint John Free Public Library

Call No.: C55

Copyright Saint John Free Public Library; all rights reserved

PAGE 1 In the Supreme Court, Kings Circuit Court, September 1814 Joseph Baxter and Simon Baxter at John Price Declaration – Trinity Term 1814 States That Defts on the 6th July 1813 at Norton in Kings County with force & arms to wit with swords sticks staves & fists made an assault on the Ptf & then & there did beat bruise wound & ill treat him insomuch that his life was greatly despaired of & alia cumnia tc: ad dam sum £300.

Pleas. 1st. As to the force and arms re: both Defts not guilty: As to the assaulting; beating etc. 2d. By Jos. Baxter ^ Son Assault Demare 3d. By Do as to Do Molliter Manus Imposuit in defence of his sum of his Close. 4 By Simon Baxter, as to Do in Defence of the Deft as his father and master re: Replication – De Injuria fua propria Verdict for Plt - £55. Damages 1

PAGE 3 Defendant’s Case In the fall Mr. J. Price asked Mr. J. Baxter if it would be agreeable to him to let him Price bring his wife to his house to lay in as his house was open and not fit by any means for a woman in her situation; Mr Baxter consented and Price brought his wife up, Mr. Baxter was happy to find Price a man of such Consideration – but much surprised when his daughter came home to see her dejected and melancholy, and after much intreaty both from Father and Mother she Mrs. Price with tears informed them he Price had struck her several times and parti cularly with a large raw hide whip and on very trivial circumstances and in her then situation being great with child and near her time she was put to bed at her fathers and when so about three weeks Price wanted to take her away to Mus

quash. Mr J Baxter told him he thought she was too weak to take such a journey at that present and advised Price to go down and see to his business and he Baxter would take all the care of his wife as in his power lay upon which Price went off and returned next night when he insisted on taking his wife away which he did and no sooner took he home but he began the former ill treatment again striking her at which time a niece of Price living in the house was obliged to interfere endeavouring to prevent Price from abusing his wife, having tied his wife in a chain, making her sit there at the table tho she was weak and cold and wished to sit by the fire in her weak state she scarce had a peaceful moment, afterwards they then moved up to a Lot of Land on the Kennebeccasis belonging to James Howland, a step-brother to Mrs. Price, the house on which was in a very bad state and scarce habitable and Price suffered it to remain so continually abusing his wife, telling her that her D–d old Father and his Price’s brother might have paid for the farm at Musquash and gave it to him Price; the sundry Shrieks and Cries of Mrs. Price while living on the last mentioned land was too frequent ly heard by the neighbours around. Price at one time beat her with a thong of Sole Leather hurting her so much that he applied Beef’s Gall to the parts and frequently before Horse whipped and struck her in a barbarous manner-- Price then proposed making shoes for Mr. Baxter at his Baxters house: There he Price came and brought his wife with him after staying there some time working but going little Mrs. Price was perceived to have cried very severely, the cause was that Mr. Price 2

PAGE 5 would not suffer her to take her Natural rest and threatened to tye her on a sled and taking her home Mr. Baxter talked to Price on the subject when Price said he would shoot him or any other that would attempt to hinder him from so doing, Mr Baxter ordered Price to quit his house immediately and opened the Door but Price refused and a little skirmish ensued after wards matters were settled and Price left the house and took his wife with him Home, where she remained some short time Price still continuing his ill usage until he went off to town when Mrs. Price directly sent up to her father to fetch her to his house as she could not live with Price any longer as he used her so ill she could not live with him Baxter on this went and brought her away leaving her Bed and sundry Ar: ticles he had given her in the habitation of Price then Mrs. Price went before a Magistrate and made oath against Price as her oath specifies, after this Mr. Mr. [sic] Burnes and Mr. Jesse Raymond came up with Price with intention to compro. mise matters But Price used such opprobrious words and be haved in such manner that Mr. Baxter forbid his coming to his house. Price then threatened to thrash Mr. Baxter and Simon Baxter too, when Simon took the matter up Price threatened to thrash him and immediately kicked him with a view to all appearances to ruin the young man –the Bye standers interfered and kept them from further quarrel, Mr. Baxter then forbid him before sufficient Evidence never to come to trouble him again or come near his house – Price afterwards came to Mr. Baxter while working at his Mill, abused Baxter, told him he had compelled his wife to take a false oath._ Baxter told him he wanted no alter- cation with him and desired him to go away and not hinder him and his work-men – on the Monday before the Court sitting at Kingston in King’s County Price came to Baxters in the morning Mr. Baxter went out and met Price told him he well knew that he had forbid him coming on his Premises Price told Baxter that he kept his wife from him and had prevailed on her to take a false oath_ Mrs. Price then offered a window and told Price she was surprised at his coming to abuse her father for she would never live with him again after such cruel usage she had received at his hands several persons bye and some of his Re lations advised him to go away Price consented to go up in case the Children were shewn him, Mr. J. Baxter Junr. brought his eldest child to him Price dandled it about for some time then seated it in the door way sent in for J. Baxter Junior who advised him, and like wise did Price’s niece, both entreated Price to go away

July_1813 6th July Los: Baxter Lost: gin Mary Baxter

which he did, but returned in course of three or four Hours 3

PAGE 7 Hours and then again sent in for Mr. J. Baxter Junior who asked him what he wanted, his reply was frivolous _ Price then went off and met Squire Kitchum who told him by no means to go near means Mr. J. Baxters house by any means but go quietly home – Price instead of taking said advice came directly up to Baxter’s house – several persons being there from the rode on their way to Court Mr. J. Baxter then came to Price told him to go away, and if he Baxter had transgressed the Law he was ready to answer it and told him Price to be off immediately, he shoved Baxter and Baxter struck him, then he kicked Baxter once or twice when Baxter struck Price with a stick and Price clenched Mr. Baxter and hove him down, their Simon struck Price so as to cause him to release his father but he would not and Simon repeated the Blow; sundry persons interfered and wanted to bring him into the house but Mr. Baxter refused, and said they might have his Canoe and his servant boy to take him away which they complied with – the next day Mr. Joseph Baxter Junior sent for Doctor Paddock by request of Price I heard Price say he swore his life against him_ my father brought her home. _ he was sent for by Mrs. P. _I understood she was away from home. –_at the

time _ she was confined after she came home. Mary Baxter.

I saw the affray. don’t remember much what passed. fighting much surprised to see people so near cheated _. I heard Mr. Baxter forbid him coming there several times that day, & order: ed him off. I held one of the children at the window. _ In the afternoon I think I heard then Baxter order him off. _ many words sometimes very high. _ I remember Mr. Baxter pushing him with his hand – I do not remember seeing Baxter kick him. _ I saw him push the stick. _I this Woman was very much terrified 4

PAGE 9 +. I saw 3 blows given by Simon. _ Mr. B they were talking

very high Mr. Price said if you strike me again I will knock you down. That stake not pushed with any violence I thought Price ducked for the purpose of taking the stake out of the hand. _ Don’t remember Simon’s saying Let go _that one blow hit the arm. Good & blood. I screamed very loud some Gentlemen came down. _

+. I do not think that Simon took hold of P. _ the first that I saw of Simon was striking P. _ Recvd

Joseph Girm: I heard Joseph B. ordered Mr. P. go off his grounds. John P. said he wod not go off for any d–d old villain like him. they were face to face – I saw B. stagger backwards. as if pushed by P._ I thought so but was

not sure. – he staggered two or 3 paces – almost fell down. Mr. B. advanced & struck P. with his left hand. _B. left handed P. said you d–d old villain strike me again and I will knock you down. _ B. struck P. again –_P. immediately kicked B. in the private parts & injured him greatly as I thought B. after that got a stake he then ordered P. off his ground a second time, & said if he wod not go he wod make him _ then pushed him with the stake at the breast. then P. kicked B. on the shin _ then B. struck P. with the stake on the side of the head _P. fell sideways _ P. recovered & clinched B. by

the arm & body _at the same time kicked B. on the thigh P. immediately threw B. down sideways. _& held him down – I then thought B. in danger. Simon B. took hold of a stake out of the shed, & told him to let go his father. P. did not let go. _ Simon B. struck P. with the stake on the side of the head. _ P. did not let go. S.B. struck him a second time and fell down, letting go his hold. _ I did not see S.B. strike any more. I have lived there on years with B. Simon _S.B.^ – about as far from the house as that stove pipe between the house and the barn near the wood pile on Baxter’s Grounds. _ I was coming to from hoeing potatoes . I heard the Row _ _ none prevent till it was over _but J. Baxter & his wife _ _Capt. Hallett & I took him down to Mr. Craft’s _ _ _ & Baxter wod have been too much for Baxter – P. much Stooges – large 5.

PAGE 2 Mr. Bliss for Deft opens Must go to prim circumstances. J. Baxter Plt’s wife’s father.

wife alleged to swear the peace, agt husband & went to her father’s house. Deft repeatedly forbid to come forbid at the time Joseph Baxter On the 6th July J. Price came in the morning about 2 o’clock. My father requested me

Of not to come to the house to tell him to go away. went I did My wife & I went & told him. he said wife & he wanted to see the ^ Children. My father met him and ordered him off told him not to come nigh the house: told him he was trespassing & had no business there this right before the door. He insisted on seeing his children. As I thought it and He could not see

his children. J Baxter said of she has a mind to show him the children the way & of the has a mind to go herself the way. I went & brought down the oldest child. Ptf’s wife is my sister he kept the child & walked about some minutes he accused my father of keeping his wife a prisoner & I said he had made her bath & false ought ^ not allowing her to come & see him. he ordered him off His wife opened the window & asked him if he was not allowed to accuse her father so as to say that he left her a sinner you know that means

to go with you again after such usages as you have given me you shameless fellow. He said that was what he wanted. – he told the child & got it in the

door, my wife shewed the other from the window my wife told him he had better go away it was thirty four to five. He is my Wife’s Uncle He went away then - he said he would be back directly I told him

PAGE 4 he had better not. I went to my work late down he then came up to the House down in the hens towards the Barn & sent in for me & my wife. My father had told him not to come nearer the house than the highway. He went down with me to the Potatoe field & found he was going to the one Low-- he went to the canoe & went up to the Mill he was gone about 1/2 an hour. or 3/4. this about 2 o’clock I was at the house as he came the third time. My father came out and ordered him off. told him he was trespassing every moment. he said you made my wife a sinner. you have made her take a false oath says my father of I am that man that you say fish your remedy at law if I have done every I am willing to abide by the laws of my County my father went & came out twice they had said hath my father ordered him off. -Says Mr. Price don’t you even know was both alive. My father said I never saw you flee at the heath I & my wife were sitting by the Corner. he came to my wife & took her by the shoulder wanting to speak to her he walk: ed up to my father- my father put up his hand as if to order him off._ he then pushed my father I begged him off back. My father says you d_d scoundrel do you push me then said I won’t go till I have an a you old gray headed villain of you land go upping & will have you down

mind you my father then struck him with his left hand My father got a stake out of the shed & said you d–d scoundrel go off or I will beat you off._ he said I will be d_d if I go tell Thee at him a mind. _my father made a push ^ with the stick & Price at the same time kicked him hard in the privates._ my father then drew the stick & struck him

PAGE 6 under the right ear in Price sprung I kicked him pushed him down I made a kick at him at the same time I hit him in the thigh _ my father was on the ground. _under Price _ My brother came up I said let go or I will make you. _ Price held his grip I hit him along the right side of the head with a struck my hand stick_ Price said Joe with you see this ^ he then let go with one hand_ When my brother gave him the first blow he furthered the stick from my father my brother struck him a sound blow on the head I knocked him down on his hands & knees & gave him a third blow on the head. – the third was a shed stake. my wife hall for he told my wife _ Polly look up I see who hurt me. _ Mr. Price a strong power ful irresitable man he told me twice that he was either of them able to hold any one ^ off. _ he said he would go this the house I none dare offend him – he kicked him & the wife fought w/ me in my father’s house . Price was

under Bonds _He had from his life against him x.

+ Can’t say whether the people paid for their dinner

no highway crosses the river. _ no Highway near my father’s house. _ Cant say whether my father hit him with a stick _ Price punched it off with his hand _ I heard the blow with the kick – my father left handed not strong.. _ My father gave one blow Simon three all on the head. I said don’t strike him any more Def did not bleed a great deal _ _Price was helped down to the canoe – by Hallet & Joe Ervin. – Price appear ed to be badly hurt. Mr. Parlee made apptm to bring him in the house – my father forbid it – he was carried to Crafts where he staid three weeks. I saw him the next day up & walking away he seemed better - S I saw him again in a week ^ _ not so strong – my wife wanted to keep him & my father apart. _ the beer out all the time – Finally he stuck he feigned he told.

PAGE 8 Peaks on Evidence. – 4th. Cdn: - 347 – when the Deft pleads a special plea, and issue is joined upon it the party allying the affirmative must prove his case. But it knows those who can start a cause on the part of a ptf in her part to be partially careful that the has to be careful that the pleadings are so framed as to bring the real case before the jury: for where a deft pleads a justification & concludes with an answer that it is the frame trespass, and the ptf traverses the cause of justification, if the deft has any such right or en: case as that meant in his plea he will succeed, for the self will not be

permitted to give evidence of any [unknown symbol] trespass through such in part were the real cause of action. – If the trespass were committed in a place not named in the dicton the deft plead liberum tenementum the deft may apply his plea to my [unknown symbol] place in the same parish of wch he is seiced Kingston Circuit, 1819. [this paragraph appears shifted 90 degrees counter-clockwise] Jos: Baxter x and Brief ats John Price to enable himself to prove the trespass to have been committed where it really was the ptf must make a new assignment patently des. cribing the locus in quo. So if a layer heiperb were committed than is mentd in the plea or than Is necessary for the enjoyment of the right claimed, or any other trespass were committed at a different time the ptf will be stopped from giving any evidence, unless to state these in a new assignment. See Mr Saunders, vol: 1.299.a. note 6.

PAGE 10 I saw. B’s Tempter. – S.B. could not have relieved his father with diaries one out the violence he made use of. – I thought pulled quite B. any on the defensive – I think if it had been back. my own case I wod have done the same. not more violence than a reasonable man wod have made use of. – Isaac Ketchum. – I was at Baxter’s between 12 & one o’clock. I had Price coming away. I advised him not to go near

B’s, as there was no chance of effecting a reconciliation and I had been deceived by B. to take being at ease as I had and a conversation with his wife. _Mr. P said he should be very glad to go & see his wife & children & have the matter reconciled. _ _Price had been put under Bonds to keep the peace after his wife who had from her the peace of him. I don’t prefer as a Magistrate to admonish him not to go there. –

+ Price requested me to go to Baxter’s to effect a second

hiatus. Abraham Parlee – I overtook Mr. P. on the wood early in June. – he said that Baxter should not attend the Court to prosecute against him _he wod have said farther of him care to his life. – – he said he was strong & could raise the whole house, & if he could not get satisfaction any other way he would take his life

and massacre the whole family. – I told B. to be careful of himself as P. would injure him – he said afterwards, what I have got I have sought for. _ I will take his property & bring him to day labour. _

Caleb Wetmore I was one of Price’s bondsmen. & advised him not to go to Baxter’s or something serious might take place – told him to be on his guard. as I was as I was his Bonds: man. _Mr. P. is a and violent tempered man, I may be off my guard – I am hasty – & something serious may take

place.