INTRODUCTION xcvii

entered verbatim in the record. However, in the Liber only the condition appears
to have been entered verbatim. In one case in which oyer was granted of a bill of
exchange and the protest, neither was entered verbatim in the Liber. Whether it
was the practice to pray oyer in open court does not appear from the Liber. In any
event the effect of oyer was to make the document so read a part of the plaintiff's
declaration to which defendant might demur.

Trial

In a substantial number of cases the defendant pleaded the general issue and
"put himself upon the Court." Plaintiff's counsel then joined in this tender of a
trial by the court, rather than by a petty jury, by writing below defendant's plea
a similiter, "And the plaintiff also," and signing his name. (This readily appears
from Liber entries and the surviving file papers dating from the early 1700's.)
Most of such entries follow the same format. However,in Fry v. Warren in the
September 1698 court, an action of trespass on aie case, the entry differs sub-
stantially from the usual Liber entry reading as follows:

And the Said Samuell Warren by Joshua Cecell Ins attorney comes and Defendeth the
force and Injury when etc. and Saith that the Said Debt was not assum'd in manner and
forme and this he is ready to verifie in any manner as the Court here Shall Consider and
the Said plaintiffe Likewise Whereupon as well the Said John Fry as the Said Samuell
Warren by and at their Consent and request are admitted here to produce their Witnesses
respectively for information of the Court in the premises according to the Custome of this
Court here used and approved and now here at this day to Witt the 27th of September
the Witnesses on Each part respectively being produced heard and examined and the
truth of the matter in Controversie between the parties aforesaid by the Court here being
heard understood and Maturely deliberated it is thereupon Considered....5l

This language is virtually identical with that of many entries found in the
records of Charles County Court and it would appear that it was copied from a
form of that court. This use of a verification in connection with a plea of the gen-
eral issue is unorthodox by the standards of English practice. The reference to the
"Custome of this Court" indicates an adaptation from English sources designed
to permit trial by the court rather than by a petty jury. The first case tried in Prince
George's County by the court, rather than a jury, was Smith v. Palmer at the
November 1696 term. In this case defendant pleaded the general issue and put
himself on the court, as did the plaintiff. There was no verification. However, the
language of the entry then follows that of the Charles County form, "Whereupon",
etc. 52 In several other cases tried by the court, traces of the Charles County format
appear in references to "witnesses on Each part Respectively being produced
Sworne heard and Examined." Why there was limited use of the Charles County
format in Prince Georges County does not appear from the Liber.

The fact that the justices of the county courts in some cases tried matters of fact
themselves without a petty jury was a matter of some legislative concern. In June
1697 an act was passed (An Act for the Reformation of Jeofailes in Maryland)
which recited that, although there were "several good and wholesome Statutes of
England made to reform Jeofailes and mispleadings after the Matter of fact found
and return'd by 12 men of a Jury" in force in the province, yet many errors and
mispleadings happened in many county courts for want of knowing and able at-
torneys and clerks which were not remedied by such laws. By reason thereof many

51. Infra 377-78.
5Z Infra 82-83.