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COURT OF COMMON PLEAS
The Court of Common Pleas is the name given to two different courts at different times in Delaware history. The first court seems to have evolved from the early colonial County Court and heard only civil cases. It functioned until 1831 when the new constitution replaced it with the Superior Court. The second Court of Common Pleas began in 1917 in New Castle County, 1931 in Kent County, and 1953 in Sussex County, and continues in existence today. It hears civil and criminal cases. See record group #1220 for Agency History of newer court.

Court of Common Pleas, ca1701-1831

The first Court of Common Pleas is not mentioned in the Laws of Delaware until 1719, although 1701 is assumed to be the year it was begun.¹ Early Kent County court records first use the term “Court of Common Pleas or County Court” in 1702.² Although the County Court acted as an Orphans Court, Court of Quarter Sessions, and an Equity Court, it was not until this date that the Common Pleas functions were titled as such.
The court’s functions and duties were not mandated by local law until Governor Patrick Gordon’s (1726-1736) “Act for the establishing courts of law and equity within this government.”³ In each county a court called “The County Court of Common Pleas” was to be held four times each year. Justices were commissioned by the governor, with three justices needed to hold court. They were authorized to rule on “Pleas of Assize, scire facias, replevins, informations and actions upon penal statutes, and hear and determine … all manner of pleas, actions, suits and causes, civil, real, personal and mixt,” and rule in matters of fact. They were also given the power to issue subpoenas, grant special courts for persons needing speedy trials, and award testatum executions.
The justices were authorized to sit as a Court of Equity which was to be held at the same times and place as the Court of Common Pleas. The prothonotary was the register of the Court of Equity. Matters determinable by common law were not to be tried in Equity but in Common Pleas.
Because many cases were being continued for indefinite periods of time, an act was passed in 1752 to establish procedures that would limit such continuances. By this act, the justices were permitted to give judgments against defendants who neglected to file pleas in speedy fashion; judgments for the defendants were given if the plaintiffs did not file declarations on time; and cases could not be continued longer than four terms.⁴
The 1776 Constitution introduced more changes to the court. The president with the approval of the General Assembly appointed three justices and one chief justice for each county to sit as the “Courts of Common Pleas and Orphans Courts.” Justices commissioned by the president were not permitted to hold other offices except in the militia. One justice was considered sufficient to open and adjourn court. Justices were also to serve as conservators of the peace in their county, and continued to have the power of holding “Inferior Courts of Chancery.”
The president and Privy Council appointed the clerks of the Courts of Common Pleas and Orphans Court; they were commissioned by the governor for five years, and had authority to sign writs issued by the justices and take recognizances of bail.⁵
During the American Revolution the General Assembly could order the sale of any person’s property who refused to take a loyalty oath.⁶ The Court of Common Pleas was to hear any claims or disputes of title resulting from such a sale.⁷

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The 1792 constitution greatly revised Delaware’s judicial system including the Court of Common Pleas which was given jurisdiction over all the state, not limited to each county as before. The court was to have not fewer than three or more than four judges, one of whom was to be a chief justice. Each county was to have a judge reside in it, and two judges were needed to hold court, although one judge could open and adjourn the court. The justices were also given power to issue writs of habeas corpus out of term and acknowledge, certify, and record deeds. Court prothonotaries were permitted to “issue processes … take recognizances of bail, and sign confessions of judgement.”
The 1792 Constitution also removed the equity jurisdiction from the Court of Common Pleas and placed in a newly established Court of Chancery. The judges of the Court of Common Pleas also sat as judges of the Orphans Court and the Court of General Quarter Sessions of the Peace and Goal Delivery.⁸

In the period between the 1792 and 1831 constitutions, many additional responsibilities were added to common pleas. For example in 1796 the court was authorized to appoint two constables to aid the Commissioners of the Tax and the Commissioners of the Levy Court and Court of Appeals.⁹ The same year the court was ordered to hear cases “according to their seniority.”¹⁰ The General Assembly in 1816 gave the court the responsibility to appoint three local freeholders to view swamps or low ground that the owner wished to drain.¹¹ After 1818 all justices of the peace were required to send transcripts from their dockets for all cases appealed from their offices to the Court of Common Pleas.¹² In 1823 the court was authorized to determine compensation whenever apprentices left their masters without approval.¹³ The court was also given the responsibility for approving or setting aside the sales of lands made by tax collectors for nonpayment of taxes.¹⁴
In 1826 the judges were permitted to demand and receive fees for certifying releases and deeds.¹⁵ Also in 1826 persons trying to export or sell convict servants out of the state were required to purchase a license from the court.¹⁶ Two years later licenses from the court was required to import or export any slave to and from Maryland. Such licenses were issued by the prothonotary and fees collected were to be added to the fund for establishing schools.¹⁷
By 1831 the state’s judicial system had become so cumbersome that the convention called to revise the 1792 constitution completely revised the court system, combining the functions of the Court of Common Pleas and the Supreme Court into a newly created Superior Court; thus abolishing both the Common Pleas and Supreme Courts.¹⁸

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COURT OF COMMON PLEAS

¹ Shepherd, William Robert, History of Proprietary Government in Pennsylvania, p. 373