To the Chief Justice, and Assistant Justice of the Genl Court of the said Province, Justice of our Lord the King of his Bench
Be it remembered that John Baptista Ashe comes here into Court ye 31st day of October the same Form in his proper person, and exhibits to the Justices here a certain information against George Burrington ofr Governor &c at present of the said Province: The tenour of which said Informac̄on follows in these words:
To the Chief Justice, and Assistant Justices of the Genl Court &c Justices of our Lord and King of his Bench &c North Carolina Sct Be it remembered that John Baptista Ashe who for himself as owner as well as Informer or he that sues in this behalf prosecutor comes here into Court ye 31st day of October the same Term in his proper person and for himself as owner as well as prosecutor, or he that sueth, gives the Court here to understand & be informed That George Burrington Esqre of North Carolina present Governour of the sd Province at the Precinct of New Hanover in the said Province on ye 15th day of Sept in this instant & Year, Did take up, and drive, or did cause to be taken up, and driven to the sd George Burrington Esqre & his plantation in the aforesd precinct two large black mares, vizt one about the age of nine years of the piece or value of fourty pounds, the other about two and a half years old of the price or value of fifty pounds, which said mares were not properly his own, but were properly the mares of the plaintiff, or Informant, and the aforesaid two mares he did also then & there misbrand, or did cause to be misbranded, by branding them with a brand not the brand of the Plt against the Statute or act of Assembly of this Province in the like case published and provided: Whereupon the said John Baptista Ashe for himself as prosecutor or he that sueth, as well as owner prays the Advisement of the Court in the premises; And that the aforesd George Burrington Esqre &c may be lawfully thereof Convicted, and for his offence may forfeit the value of the said mares & twenty pounds, that is to say ten pounds for each mare over and above the value of each of the said mares: And that the aforesaid John Baptista Ashe the forfiture aforesaid may have to himself being as well owner as he that sueth for the same, according to the form of the Statute or Act of Assembly of this province aforesd And that the aforesaid George Burrington Esqre &c may come hereinto Court to answer in and upon the premises &c
Jno Doe, Richd Roe pledges &c
Whereupon: David Osheal Genl Attorney in behalf of his Excellency George Burrington Esqr Governor Comes into Court & prays the Advisement of the Court upon the Infermac̄on and prosecution of John Baptista Ashe against him, whether they will receive the same, for that he sayeth the said George Burrington Esqre then was and still is his Majestys Lieutenant of sd province & Governour in Cheif Chancellor ande same and is not to be drawn or compelled in this Court in manner aforesd to answer for any Crime or Offence, and further the said Attorney in behalf of his Excellency George Burrington saith and avers that the said mares mentioned in sd prosecution are and then were bona fide the property of the said George Burrington Esqre and that as Attorney to him & by his immediate orders the sd David Osheal will Consent to a rule in behalf of the said Governor Burrington, that he will receive a declaration from the said Ashe in Trespass, Detinue Trover or otherwise, and plead thereto so or to try the Title & property at Law. But prays this prosecution being scandalous & what this Court can not compell the Govr to answer to may be dismist.
Then Jno Bapta Ashe aforesd comes into Court and objecting against a certain paper put or pretended to be put in & preferred to this Court by David Osheal Genr Attorney in behalf of his Excellcy George Burrington Esqre Govr &c (against whom an informac̄on had been exhibited by the said Ashe) prays that the same may not be received, for that it is irregular illegal & contrary to the practice of this Court And he offereth these reasons to shew why the said paper ought not to be received but to be rejected.
1st The said paper seems to be in the nature of a plea to the jurisdiction of the Court or of a plea of privilege: in both which cases there are certain direct and legal pleas, which ought to have been pleaded (if such were the Case) according to the practise and rules of this Court and not thus ambiguously uncertainly and Contrary to the practice of all Courts of Law.
2d By way (as it were) of privilege he the said George Burrington Esqre &c by his Attorney aforesd assumes a title which I humbly conceive is not conferred on him by his Majesty Vizt that of his Majestys Lieutenant of the sd Province Neither does he shew how or in what manner he is entituled to privilege or an exemption from Suite in this his Majestys supreme Court of Com̄on Law in this Governt in which if the Pct cannot have relief, or exhibit this his Suite, he conceives himself to be without remedy.
3dly The Pct is surprised that his Excellency his learned Council should trifle so egregiously with this Honble Court and the Pct as to pretend to offer to consent to a rule of receiving a declarac̄on from the Pct in an Action of a different nature of his own proposeing forreign to the purpose vizt to try the title and property at Law whereas the Pct sues notr was excepted out of or exempt from the force of such Law and not bound by it, Or at least that the Informant had no remedy by means or force of the said Law against his Excellency in this Honble Court.
This paragraph struck out by the Court
The learned Gent might as well urge, should a Governr think fit to cut off a persons earr or nose & such person should proceed to cause him to be prosecuted on the Statute against maiming &c yt the prosecution was scandalous &c and what this Court could not compel such Governrs to answer to; and offer to receive a declarac̄on from the party injured in Trespass detinue Trevor &c to try the title & property at Law to his Ears and nose
4thly The Pct is humbly of opinion, that this action well lies in this Court in that it is by Informac̄on avoiding any scandalous or approbreious expressions and the penalty is pecuniary without any attack or Copies to be Executed or served on his Excellencys persons.
Lastly The Pct is well aware that this way of giving in such argumentative papers is not agreeable to the ancient practice of this Court and thinks he ought to have demurred to the paper put in by Mr Osheal as to an insufficient pleas; but this Honble Court seeming yesterday to be of a different opinion having received and read the said paper but not at a plea. He hopes and humbly prays that his answering in the same manner may not be offensive to this Honble Court; And that his Action may be received; and that he may have relief according to the advisement of this Honoble Court in this his Majestys Supreme Court of Com̄on Law in this Province: But if this Honble Court shall be of a different opinion he humbly prays their further advisement.
Thereupon the Court proceeded to ye following Judgement.
At a Genl Court of Sessions of the peace Court of Assize and Genl Goal delivery begun and held at Edenton for the said Province on the last Tuesday in Oct 1732 & by adjournments continued to the 16th day of Novber 1732
William Little Esqre Chief Justice
William Owen Esqre Justice sd Court
Macrora Scarborough Esqre Justice sd Court
David Osheal Esqre Gent Attorney for his Excellcy George Burrington Esqre Govr pray'd leave to amend exceptions he had put into the Informac̄onr which was granted by the Court, and the same was amended and read; And thereupon John Baptista Ashe put in a replicac̄on or exception thereunto, which was read and the matter being duly argued, and fully heard, and by the Court here considered upon and the advisement thereof desired; It is the unanimous opinion of the said Court that the said Information being a prosecution against the said George Burrington Esqre now Governor here for a Crime or offence alledged to be done by him whilst Governor which by Act or Parliament is ordained else where to be heard & determined, and for that the said Court cannot compell the said Governor here to appear or answer thereto they cannot hear & determine the same & will not proceed in Judgement thereon.
George the Second by the Grace of God of Great Britain France & Ireland King Defender of the faith &c
To the provost Marshall or his Deputy Greeting.
We command you that you have the body of John Bapta Ashe Esqre in our Goal at Edenton unlawfully detained as he sayeth, before William Settle Esqre our Chief Justice together with the Cause of his Commitment to do & receive as our said Chief Justice together with the Cause of his Commitment to do and receive as our said Chief Justice shall in that part Consider and have you there this writ
Witness William Little Esqre Chief Justice at Edenton this 10th day of November 1732
On Complaint of His Excellency George Burrington Esqre Governr & Capt. General: of this Province, that John Baptista Ashe Esqre on or about the tenth day of this Instant November in this present year of our Lord Christ one thousand seven hundred & thirty two did write & publish certain Scurrilous Libells to defame the said Governor against the peace of His Majesty that now is, and the Statutes or Acts of Assembly of this Province in that case made & provided these are therefore in His Majestys name to command you to apprehend and take into your safe Custody the said John Baptista Ashe and bring him before me or somer Court to answer abide & perform what our said Justices in the premises aforesaid then and there shall Consider & make due returne hereof Given under my hand and seal this 10th day of November 1732
To the Keeper of the Goal at Edenton
I send you herewith the body of John Baptista Ashe Esqre this day brought before me and accused of writing and publishing certain false & scandalous Libels against His Excelly George Burrington Esqre Govr Capt General &c of this province against the peace of our Lord the King that now is & the Act of Assembly of this Province
Therefore you are hereby strictly charged & commanded in his Majestys name to receive the said Jno Baptista Ashe and him in Goal to keep untill he give bond with two sufft securities, the said Ashe as principal in one thousand pounds sterling and his securitys in five hundred pounds ster: each personally to appear before the Justices of the Genll Court of this province at the next Genll Court to be held for the same at Edenton then and there to do & receive what the sd Justices in this behalf shall order or be otherwise discharged by due Course of Law
Att a General Court of Sessions of the Peace Court of Assize & General Goal delivery begun & held at Edenton for the said Province on the last Tuesday in October 1732 & by adjournments continued to the 10th Day of November. 1732
David Osheal Gentleman Attorney for his Excellency George Burrington Esqr Governour prayed leave to amend the Exceptions he hadr now Governour here for a crime or offence Alledged to be done by him whilst Governour which by Act of Parliament is ordained Elsewhere to be heard & determined & for that the said Court cannot compel the said Governour here to appear or Answer thereto they cannot hear & determine the same & will not proceed in Judgment thereon.