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A civil case of trespass

Reader Linda Eason was delighted to find that the records of the Cole County, Missouri, Circuit Court, have been put online at, and thrilled to find that the very first case for which records survive involved an ancestor, James Casey.

trespassExcept that she’s not entirely sure just what James was up to, and why he ended up in court.

“The court records say he was found not guilty of trespass,” Linda writes. “How much jail time was he facing if he’d been convicted?”

Here’s what the court file says:

Peter Bass, Commissioner of the City of Jefferson, filed the complaint of trespass against James Casey in early March 1826.1 The date isn’t entirely clear but may have been the 8th of March.

Bass charged that James:

at divers times between the first day of September (and commencement) of this suit with force and arms entered … Land belonging to the State of Missouri … and with force and arms cut down injured and (destroyed a?) number of trees to wit, the number of two hundred then growing the property of the State of Missouri … of the value of fifty dollars…2

The trial was originally scheduled for 18 March 1826, but Bass asked the court for more time to bring in his witnesses: “2 of his witnesses did not attend and the Constable being absent did not return in time to serve the subpoenas on all the witnesses.” The court agreed that the trial court be put off: “these I considered satisfactory causes and granted continuance until Saturday the 25th.”3

On the 25th, the case was heard by a jury at a schoolhouse in Jefferson City used as a courthouse, and the jury returned the verdict you see here, signed by the jury foreman John Dunnica: “We the jury find the Defendant not guilty of the Charges alleged in the Declaration.”4

And the case was then appealed by Bass to the Circuit Court for the April term of 1826.5 The case file doesn’t say what happened in the appeal; there may well be more records — a docket or something — to indicate what happened, and Linda needs to follow up on that.

But as to ancestor James — was he facing jail time?

Answer: no.

Despite what we 21st century types think when we hear the word trespass today, this wasn’t a criminal case, and even if the jury had gone the other way, James wasn’t facing a stretch in the Jefferson City Jail.

That’s because the word wasn’t used in the early courts for a crime at all — it was the official and formal name of a type of civil action for damages. By definition, in practice, it was a “form of action, at the common law, which lies for redress in the shape of money damages for any unlawful injury done to the plaintiff, in respect either to his person, property, or rights, by the immediate force and violence of the defendant.”6

In other words, this was a tort case — tort meaning a civil wrong or injury for which damages could be awarded.7

Now, sometimes an action is both a tort and a crime. If I punch you and break your nose,8 chances are pretty good you’re going to press criminal charges against me for assault and battery. But you can also sue me for damages for your broken nose. And in the early days, that lawsuit would be called an action for trespass.

A trespass action could be brought for:

• an assault and battery, wounding, imprisonment, and the like…

• an injury to the relative rights when occasioned by force; as, for beating, wounding, and imprisoning a wife or servant, by which the plaintiff has sustained a loss…

• injuries to personal property, which may be committed by the several acts of unlawfully striking, chasing, if alive, and carrying away to the damage of the plaintiff, a personal chattel… (or)

• breaking through an enclosure, and coming into contact with any corporeal hereditament, of which another is the owner and in possession, and by which a damage has ensued.9

So the worst that could happen to James from this particular court case was that he would have had to pay up on the value of the trees.

No jail for James.


  1. Complaint, Bass v. Casey, Case files, no. 1 (1826), Cole County, Missouri, Circuit Court; Missouri State Archives, Jefferson City; digital images, “Missouri, Cole County Circuit Court Case Files, 1820-1926,” FamilySearch ( : accessed 5 Mar 2014).
  2. Ibid.
  3. Ibid., transcript by G. Woodward, Justice of the Peace.
  4. Ibid., verdict sheet, 25 March 1826.
  5. Ibid., transcript by G. Woodward, Justice of the Peace.
  6. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1187, “trespass.”
  7. See ibid., 1178, “tort.”
  8. Don’t worry. I won’t. It’s against my religion. I’m a devout coward.
  9. John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union, rev. 6th ed. (1856); HTML reprint, The Constitution Society ( : accessed 5 Mar 2014), “trespass.” For the distinction between trespass and trespass on the case, see Judy G. Russell, “Unforgiven trespass,” The Legal Genealogist, posted 13 Aug 2012 ( : accessed 5 Mar 2014).
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