Types of Court Records
| Researching Court Records
This article is part of a series.
|Overview of Court Records|
|Types of Court Records|
|List of Court Record Types|
|Researching Court Records|
|Selected Proceedings and Courts|
|Justice of the Peace Courts|
|List of Useful Court References|
Most courts in America are courts of record-that is, they are required by law to keep a record of their proceedings. Inferior courts, not required by law to keep a record, usually do so for their own convenience. They need to know what they did and when. Before the days of shorthand and court transcript machines, the clerk received complete written depositions, testimony of witnesses, summons, writs, and often attorneys' arguments so he had a complete record of the essential parts of the case. From these and his own notes, the clerk prepared minutes, orders, and judgments.
While practices vary from one court to another and between state and federal courts, the kinds of records summarized in table 7-3 can be found. In addition to the records in table 7-3, the court process produces sheriff and constable files, coroners' inquests, jury and jail records, and attorney lists.
Some states file all cases together in one set of volumes, with one set of case files running chronologically by date and number. Other states use a different set for divorces, equity proceedings, and so on. Probate records are almost always separate.
Although the case file is an invaluable collection of testimony and exhibits that may include photographs, marriage certificates, wills, receipts for the division of property in an estate, writs, and subpoenas, it is created only for matters before the court that involve litigants. The administrative activities of the court, such as the binding out of apprentices, the exemption of the elderly from taxes or military service, appointments of road inspectors or militia officers, and memorials for soldiers killed in war are recorded only in the minutes and orders of the court.
Indexes to court records are usually incomplete. Some list only the surnames of the litigants (Potts v. Abernathy, 12, 81-3, 289), some approach docket-style entries (William Potts v. Robert Abernathy, Case in Common Pleas: Warrant, 12; deposition, 81-83; report, 289) and some index plaintiffs only (William Potts, 12, 81, 82, 83, 289). Since 1900, some courts have prepared typewritten indexes by plaintiff and defendant, with separate subject indexes for the use of bench and bar. Rarely do these official indexes list jurors, witnesses, attorneys, justices, and other parties mentioned. Administrative court actions are not indexed either. While most courts have retained original indexes or microfilmed copies of the originals, almost all courts have moved to or are in the process of moving to computerized indexes to retrieve current case files.
During the 1930s, the Work Projects Administration (WPA) organized several court indexing projects using out-of-work schoolteachers, secretaries, and executives. Projects in West Virginia, Tennessee, Ohio, and other parts of the country have made searching for court records almost painless. A good example of the thoroughness of the WPA index comes from the 1823 to 1829 minute dockets of Rhea County, Tennessee. Col. George Gillespie is not mentioned in the original index, but the WPA index includes sixty-seven entries for him.
When a judicial body agrees to hear a case, it is placed on the court docket until trial. Abbreviated entries are made on the dockets for all changes in the status or pending action of the case for each term of court until the case is closed, carried over, or settled out of court, or until judgment is rendered. Thus, any time a case is pending, its current status may be determined by examining the docket. Most cases were on docket for at least three or four terms of court.
Most courts maintain several different dockets: criminal, civil, equity (chancery), miscellaneous (condemnations, lunacy commitments, disqualification of voters, adoptions, divorces, tax foreclosures, insolvency, estates, and so forth), stets (cases removed from the regular docket because they have been inactive for several years), and claims (claims of creditors against estates and property). A court that maintains separate dockets will usually separate its other records into distinct volumes. Some courts maintain only one court docket for all types of cases. Sometimes duplicate dockets are prepared for judges, attorneys, or court clerks. Many dockets are indexed by plaintiff, by defendant, or by both; naturally, such indexes vary a great deal in form. Dockets may also be called "minute dockets," combining two records into one.
The value of dockets is in their use as an index. They are not alphabetically arranged, but reading them is faster than having to read every page. For example, if searching for the surname Potts, 1813 to 1845, begin with the dockets for the first term of court in 1813. Searching the dockets through twenty-two terms of court to 1 September 1818 reveals "William Potts v. Robert Abernathy Crd o" (carried over). This notation indicates that a case involving William Potts was placed on the docket but that no judgment had been made. Searching the quarterly dockets reveals that the case appeared on the docket and was carried over in December 1818, March 1819, June 1819, September 1819, December 1819, and March 1820.
From these entries can be found information in both the minutes and the orders for each term of court through March 1820, when the case was closed. At this point, most court clerks place all of the miscellaneous papers pertaining to the case into one file labeled with the term of court in which judgment was rendered, the title of the case, and the case number. This case file is now the point of interest, supplementing the minutes and orders. If the court kept judgment records, they too will be arranged chronologically. Thus, entrance to the minutes, the orders, the judgments, and the case files is gained by using the dockets.
All actions of the court are briefly recorded by the clerk in the minutes. Though rarely indexed, minutes are valuable. Where dockets and indexes are missing, minutes will identify terms of court where an ancestor's cases appear. Early courts tended to meet every three months for a week or until business was completed. The minute books generally record the term of the court ("June term"), the month and year of meeting, and the place of sitting. In colonial days and on the early western frontier prior to the building of a courthouse, the court could be held in a private home or a business establishment, such as a tavern. The names of the justices present were next recorded. The court's business, as it took place, was then entered in diary form. At the end of the court's term, the clerk's signature would appear, followed by "CC" (Clerk of Court) or another designation. The justices often signed as well, to authenticate the minutes.
Court minutes at the county level will reflect a variety of matters. Minutes will include civil suits, criminal cases (although not if the penalty was death or if cared for by another court) and the settlement of estates. In addition, some or all of the following may appear: the appointments of officeholders, i.e., overseers of the poor, coroners, justices of the peace, jurors, and tax officials; the issuing of business licenses for ferries, mills, and taverns; the consideration of reports and petitions; coroners' inquests; appointment of guardians for those unable to manage their own affairs; apprenticeships; manumission of slaves; stock marks and brands; matters concerning taxes and public buildings; and some land matters. In short, the full range of court activities will fall within the recorded minutes. The minutes may not always be complete enough to include the names of all witnesses and jurors; however, it is far easier to search through unindexed minutes than it is to examine the individual papers filed in each case file for each term of court.
Orders of the court are recorded by law in most jurisdictions for future reference. Executions are an important kind of order, often rating a separate volume for recording. They are directed to the sheriff, marshal, or constable to enforce, usually include a brief r√©sum√© of the court case, and describe the judgment to be carried out.
Many items of court business, especially before 1800, have nothing to do with litigation, for courts were administrative bodies as well as courts of law. The following extracts from court minutes and orders will show you the potential value of these records.
Appointment of Guardians
The following entry, from the Order Book of the Augusta County Court, Virginia, 1750, is the only indication of the fact that James Berry was the guardian and not the father of these orphans:
Ordered that James Berry be appointed Guardian of John Berry, James Berry, and William Berry orphans of James Berry, dec'd.
This item distinguishes between the three James Berrys.
The court may also order a memorial resolution as an expression of the community's respect for the deceased. Here is an 1849 example:
The death of Chapman Johnson occurred at the residence of John B. Baldwin in Richmond on the 12th of June 1849. The Court expressed respect and admiration for him. A motion to obtain a memorial to such a truly great and good man was made. He had many social and mental virtues and legal abilities, an ardent and unselfish patriotism, and monumental purity as a statesman.
Ordered that the court present to the presses of Staunton and Richmond for publication and a special copy to the family: 14 June 1849.
Having learned that Chapman Johnson, who was for many years a citizen of their town and acknowledged head of the legal profession, not only here but in the Commonwealth of Virginia, and who departed this life in the city of Richmond on the 12th of June it is due alike to their feelings and the public sentiment of the community that the Augusta County Bar Association gives publically their deep sense of loss, their affectionate regard for his memory, and their sympathy to his estimable family. Mr. Johnson became a resident of the town of Staunton more than 40 years ago. His profound learning as a lawyer and his distinguished eloquence as an orator endeared all to him. More than 20 years ago he removed himself to Richmond, but his removal did not sever the ties which bound him to Augusta County. A portion of each year was spent by him within our borders. In 1829, though of Richmond, he represented Augusta County at the convention to revise the State Convention. Our loss, with yours, is great.
It was further decided that the court would wear the badge of mourning for 30 days.45
This entry would be invaluable to a researcher who was unable to locate Chapman's whereabouts or unable to determine when or where he died.
While the subject of naturalizations is discussed in great detail in chapter 9 "Immigration and Naturalization Records," it is important to note here that often the only references to early naturalizations are the court orders granting citizenship. An 1851 example from the Augusta County, Virginia, Court Order Book announces:
It is ordered by this court that Samuel Johnston formerly of Ireland who declared his intention to become a citizen of this state some 2 years ago having resided in the United States at least 4 years and in Virginia at least 1 year, be granted United States Citizenship.46
Furthermore, swearing-in formalities for a witness or a jury member often require a statement of citizenship status such as, "I, William Patrick, of Trenton, New Jersey, late of Dublin, Ireland, age 42, do declare . . ." This type of brief note, which would not have been discovered using an index, points out the necessity of reading original court records in their entirety for the time period and area of research.
In some jurisdictions, when judgment is given by the court and the case is closed, the court clerk is required to make an extensive minute entry with abridgement of the case and its resolution in a special book of judgments. These volumes are popular legal sources for lawyers and members of the bench because of their brevity. Before the days of printed court opinions, these judgments formed the precedents for future legal decisions. Below are some examples taken from the Eastowne (Westchester), New York, Mayor's Court for 1657:
Eastowne May ye 1: 1657. where as it doth appeare in court that Roger miles Jarmia Akenes and hendrick corneloson waare the caus of kiling wine [swine] to the number of seven yet being a actidentall thing therefore the sentance of the coreut is yt they shall pay thirty shilings to anne quinbe proposinably and cost of coreut which is eighttene shilings and to be performed in ten days
Eastowne may ye 1: 1657. whereas it appears in curuet that Larans Turner is in deted to hendrick Corneloson five pounds Sterling thirteen shilings yet becaus ten of the catel were not keept at winter ther fore the sentense of the couert is that Larans Turner shall pay to hendrick Corneluson five pounds Sterling acording to the complaint and [?] cost of coreut which is seven shiling
mary Corneluson plantiv against gorg wright in an action of slander
Eastowne may ye 1: 1657. it being proved in coreut that gorg wright hath ruyestly betwen mary Corneluson and good wife [illegible word] that was formerly ended therfore the sentens of the cureut is that gorg wright is fined and shall pay to mary Corneluson three gilders and cost of court which is fourtene shilings to be performed in ten days
June ye 12 1657. Richard Ponten plantive in the case of mary corneluson is plantive in atction of batrey against ales martin
September ye 1: 1657. Thomas martine plantive against Josiah Gilbord in a aktion of slander wher as it cannot be proved that Josiah Gilbord hath slanderd Thomas martin therfor for the sentanc of The cureut is that Thomas martin is to pay all cost of cureut which amounts to six shilings and three pense to be pad in 10 days.47
Case files are among the most valuable of all court records because they contain original copies of evidence, writs, testimony, subpoenas, publications, etc., and thus are usually the most complete. In these files will be found details that are never recorded in the minutes, orders, or judgments. In some jurisdictions, court clerks group all closed case files into one large bundle for each term of court and label it with that term. However, other court clerks assign case numbers to their files and access them through plaintiff-defendant cross-indexes.
Case files may contain one document or hundreds of them. Even before shorthand, most significant testimony was taken down in writing and, if not signed by witnesses, at least attested by the court. Because of the tremendous volume of case files that have been created over the years, the vast majority of them have not been microfilmed or digitized. It is usually necessary to conduct personal research or to send a representative to most courthouses (or the warehouses or archives where case files may be stored) in order to view them.
Most courts reimbursed witnesses, an arrangement that encouraged participation from those who had to travel long distances or leave employment to appear. Witness books and lists show the names of witnesses and the amounts they received in payment. Some lists even include the addresses and ages of the witnesses named. These lists may not have been complete. Nevertheless, they provide another means of identifying ancestral families in the cases where they exist.
There are commonly three types of juries: the grand jury, the petit jury, and the coroner's jury.
The grand jury, or indictment jury, consists of one to twenty-three members and holds a preliminary hearing court to consider the evidence against a person accused of a crime and to determine if the evidence justifies holding the defendant for trial. They can also present those suspected guilty of law violations for punishment based upon their own personal knowledge.48
The petit jury, or trial jury, consists of six to twelve persons and acts as an impartial body to hear the evidence of the case and to reach a just decision based upon that evidence. When a coroner's jury was used it consisted of three to twenty-four members and was charged with hearing evidence about deaths under questionable circumstances.
Most courts maintain separate records of jury duty. For each court term, a specific number of names is drawn from a list of all those eligible to serve, prepared from the tax records or voters' lists on file in the county. The jurors' list will show the jurors' names, addresses, occupations, and sometimes ages. Jurors excused or exempt are indicated with the reason for the dismissal. Each person selected is summoned to appear by the court. Coroners' juries are also called by drawing and summons, but they serve only for specific cases.
In most jurisdictions, a jury call is mandatory unless the person has an acceptable excuse for refusing. Originally, the only records kept were the summons and minute entries made by the court clerk. Before long, however, many jurisdictions began to reimburse jurors for travel costs and loss of employment income while on duty and to keep careful records of jury service as a basis for payment. When the court meets in session each day, a roll call of jurors determines who is present.
Many courts require grand juries to keep careful records of their investigations in separate volumes. These records contain the roll call and description of the case under consideration, including testimony of witnesses, reports, and findings of the jury. The actual trial record of a case after indictment contains a summary of the findings of the grand jury, but its own minutes are usually more complete.
In a jury book, you will find each case listed with the names of jurors who served on the case, the court term, the case number, and the number of the juror. Some courts prefer to record petit, grand, and coroner juries separately, while others use the same volume for all three types.
The attendance record gives the names and addresses of the jurors, the days served, the days defaulted, date excused from service, and the kind of jury-petit, grand, or coroner's-on which each juror served. From this attendance record, payment is made for the number of days served.
Not all jurisdictions use or preserve discharge certificates. Each certification shows the name and address of the juror, the date of discharge from jury duty, and sometimes the reason for discharge-death, disability, end of term, etc.
The genealogical value of jury records lies in such information as names, occupations, and addresses. Jury records can also prove that the person named is still alive at that date, that he or she is a citizen of the jurisdiction, that he or she owns property-real estate or its equivalent-in the jurisdiction, and that he or she is of legal age. If a juror dies or moves from the jurisdiction during service, normally the record will note it.
The attorneys who appear in court on behalf of the plaintiff or defendant are not always lawyers. In fact, several colonies in early years actually banned the practice of law by attorneys-at-law-professional lawyers educated in techniques and procedures of law. Instead, this role was taken by attorneys-in-fact, proxies for the plaintiff or defendant who pleaded the case for someone else before the court.49 In most colonies, they were literate and experienced individuals, though not technically trained.
As universities were founded and travel and communication with England improved, the number of attorneys-at-law increased while attorneys-in-fact decreased in proportion. By the time of the American Revolution, the colonies had trained lawyers and learned judges, but lay attorneys still acted for many decades.
There are two main types of records concerning attorneys. The first is letters of attorney, or permission for an attorney-in-fact to appear before the court on behalf of a plaintiff or defendant. Such a letter is very similar to the letters testamentary or administrative in a probate case and contains the name of attorney, the party granting proxy, the case involved, and the date when permission is granted.
The second is rolls of attorneys. Most courts maintain separate volumes of attorneys and members of the local bar who are licensed and approved to appear before that particular court. Each roll contains the name of the attorney, the sponsor, and the date of the admission to the bar. Some rolls also contain dates of death, disbarment, removal from the jurisdiction, etc. Some jurisdictions require law students to register as prospective bar members. These registrations contain the name and address of the student, the lawyer under whom the intern will serve, school, sponsors, and the report of the board of law examiners concerning qualifications. Sometimes the date and place of birth, age, and even parents' names are included. To learn more about researching attorneys, see chapter 4, "Business, Institution, and Organization Records."
Sheriff (Marshal, Constable, Chief of Police) Records
In every action filed in the courts of record, a sheriff is called upon to perform some service. The sheriff serves the official writs, summons, and subpoenas and must execute all final judgments of the court. The sheriff is responsible for the preservation of the peace, enforcement of laws, arresting felons and committing them to jail, and executing the mandates, orders, and directions of the court. The sheriff has the power to command every person above fifteen years of age to respond for the protection of the jurisdiction and preservation of the peace in times of emergency or be subject to fine or imprisonment. In so acting, the sheriff represents the sovereignty of the state, and no one in a county is superior to the sheriff.
The counterpart of the sheriff in a large municipality is the chief of police; in the federal court system, the marshal. The constable serves in a like manner within the area served by a magistrate or justice of the peace: he serves as the sheriff in any matter within the jurisdiction of the local magistrate. The constable has the same powers and responsibilities within a more limited sphere of authority.
The records preserved by the sheriff can be conveniently divided into those produced as executive officer of the court and those produced as an instrument of law enforcement.
Records Produced as Court Executive
The sheriff is responsible to serve all writs issued by the court. Original writs are unserved writs. They may be current ones about to be served or old ones for persons whose whereabouts are unknown or whose fees for service have not been paid. Some jurisdictions require that the sheriff preserve a copy of all writs that he served. Some sheriffs maintain a running list of the writs they have received for service. This list contains the type of writ, the date issued, the names and addresses of the parties, the court term, case number, and the date filed.
In some jurisdictions, record of all writs is kept in the same volume. In others, various kinds of writs are recorded in separate volumes-capias (arrest warrants), summons, warrants, executions, sales of condemned property, etc.
Most sheriffs also preserve a docket recording all writs served and any resultant sales of property. This docket will give the names of the parties, court, term and case number, title of the action, date filed, attorney named, costs and fees, disposition (judgment and execution) of the case, and the sheriff's signature.
Some sheriffs keep a special volume recording all deeds transferred by sheriff's sale. These show the description of the property, the date and amount of sale, the name and address of the grantee, and the date of the deed.
A lien book is similar, recording all liens on property within their jurisdiction that have resulted from court order. They will show the date of the lien, the parties involved, date of sale notice, location, and description of property.
Because the sheriff is frequently responsible to select as well as summon the jurors for each court term, he will often have a copy of the court's jury records.
Records Produced in Law Enforcement
Many sheriffs maintain a fingerprint and "mug" file; however, such files are of such recent origin that it is rare for the genealogical researcher to encounter them.
In most jurisdictions, the sheriff is responsible for the care and supervision of the local jail and its occupants. Unknown to most researchers, jail records are available as early as 1695 and perhaps earlier. Because the majority of incarcerations in the past were for debt, not crime, many Americans appeared at least once in these records before debt no longer was a cause of imprisonment.50
Before the American Revolution, jails were used to detain offenders awaiting trial, debtors, and witnesses. Violators of laws sometimes had to wait as long as a year before being brought to trial, and debtors were held until their property could be condemned and sold to pay the debts. Debtors with no property were released.
Some jurisdictions-Georgia, for example-"farmed out" convicts and debtors for labor and board beginning during the last quarter of the eighteenth century or the first quarter of the nineteenth century.51 Jail records include journals kept by sheriffs, jail wardens, or deputies. They are similar to daybooks and show the name and sex of every prisoner, the type of sentence and its length, dates of commitment and discharge, and reason for discharge: death, pardon, termination of sentence, etc. (For a more complete treatment of jail records, see chapter 4, "Business, Institution, and Organization Records.")
The register of prisoners contains the prisoner's physical description (hair, eyes, weight, height-later records contain fingerprints and photograph), name and address, age, occupation, date and place of birth, habits and distinguishing characteristics, crime committed, sentence, education, previous prison record, dates of commitment and discharge, name of committing official, etc. This record can also be called the admission record, commitment register, prisoner's docket, or discharge book; it is required by law in most jurisdictions. Some even include the destinations of discharged offenders.
Some jurisdictions have required medical records since the early days of their jails. This register contains the name, physical description, age, sex, mental condition, and a brief medical history of each prisoner requiring medical attention. As part of this history, names and ages of parents, siblings, spouses, and children are often included.
The prisoners' daily record shows the daily roll of prisoners, their names, the date, the number of meals served, the total cost per day for each prisoner, etc. Because the United States had no penitentiaries for several decades for those convicted in federal courts under federal laws, separate records were kept on these prisoners in regular jails so that claims for costs could be submitted to the federal government.
Since 1814, jail keepers have been required to keep separate records of all prisoners of war either awaiting trial or imprisoned after conviction-again, for reimbursement by the government. The contents of these registers are similar to the regular registers, but they also contain information concerning capture and military unit.
Most jurisdictions require that the jail keeper prepare an inventory of prisoners' property taken into custody during their term of imprisonment. The prisoner's name and signature is usually found in these records, along with the list of property.
Some jails preserve a record of all prisoners who are transferred to another jail showing the name, date of commitment, date and place of transfer, reason for transfer, and so forth.
In one family research project, Bridget Nixon proved decidedly elusive. A family tradition held that her alcoholism alienated her family. Her children were housed with relatives, and the husband finally divorced her, then remarried and reunited the children. Finding documents to support the tradition, however, was difficult until a search of jail records revealed her activities in St. Paul, Minnesota, from 1856 to 1860.
| Aug 1856
| Criminal Court
City of St. Paul vs Bridget Nixon Disorderly conduct, no return of process
| 20 Nov 1856
| Cited Bridget Nixon for drunkenness arrested by officer White W.R. Miller, City Marshall
| Nov 1856
| Police Court of St. Paul United States vs Bridget Nixon
Threats of violence Defendant committed in default of recognizance to keep the peace Orlando Simons, City Justice.
| May 26 1857
|| Report of the Chief of Police
W.R. Miller submits claims for boarding of prisoners Mrs. Bridget Nixon, intoxication arrested by Officer Powers 25 May
| 11 June 1957 [sic]
|| Mrs. Nixon arrested for intoxication by Officer Wollers, 26 May
| 21 July 1857
|| Bridget Nixon arrested for assault and battery by Officer Morton, 16 July.
| 7 Dec. 1858
| Arrests-Mrs. Nixon, intoxication by Officer Morton, 1 Dec.
| 17 June 1859
| Report, Chief of Police, W. Crosby Mrs. B. Nixon, disorderly conduct arrested by Officer Miller
| 20 May 1859
|| City of St. Paul vs Bridget Nixon Disorderly conduct Defendant fined $10.00 and committed in default of payment
| 27 June 1859
| Identical entry [duplicate or repeat of offense not clear]52