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Colonial and State Records of North Carolina
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Minutes of the North Carolina Governor's Council
North Carolina. Council
October 14, 1767 - October 27, 1767
Volume 07, Pages 523-529

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[From MS. Records in Office of Secretary of State.]
COUNCIL JOURNALS.


At a Council held at Wilmington 14th October 1767
Present
His Excellency the Governor.
The Honorable John Rutherford Esquire
The Honorable William Dry Esquire
The Honorable Lewis DeRosset Esquire
The Honorable Benjamin Heron Esquire

His Excellency was pleased to send over the Caveat Dockett and laid over several Causes for hearing tomorrow.

His Excellency also acquainted this board that in pursuance of his Majestys Mandamus dated at St James the 22d of May 1767 requiring him to cause letters Patent to be passed under the Great seal of this Province to constitute and appoint Thomas McGuire Esqr Attorney General for the said province. His Excellency had issued a Commission accordingly which was then read and Mr McGuire appeared and took the oaths required and subscribed the Test. Ordered that the Mandamus and Commission be recorded in the Secretarys Office.


At a Council held at Wilmington 21st October 1767.
Present
His Excellency the Governor
The Honble John Rutherford Esquire
The Honble William Dry Esquire
The Honble Lewis DeRosset Esquire
and
The Honble John Sampson Esquire
The Honble Benjamin Heron Esquire

Read the petition of Andrew Logan requesting that his patent dated the 13th day of May 1756 for 409 Acres Granted by his Excellency James Glen Esqr Governor of South Carolina might be recorded which patent being laid before this Board was ordered to be recorded in the Secretarys office. His Excellency was pleased to go through the administration docket hear several Causes and finished the same.

Isaac Edwards Esqr His Excellencys private secretary appeared in Council and took the oath of Allegiance to his Majesty and of secrecy to the Governor and Council.

Benjamin Heron Deputy Auditor of this province presented a

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memorial to His Excellency in Council which he prayed might be inserted in the Journals and is as follows—Vizt,

The Memorial of Benjamin Heron, Deputy Auditor

North Carolina—Ss.
To His Excellency William Tryon Esqr his Majestys Captain General and Governor and Chief in and over the said province, and to the Members of His Majestys Honorable Council.

The Memorial of Benjamin Heron, Deputy Auditor, of the said Province humbly sheweth

“That on the sixteenth of July last His Majestys receiver General sent down to your Memorialists office by the hands of Mr Green fourteen Volumes in Folio Bound in Leather, and two stitched in sheets desiring the said James Green would demand a receipt from me as deputy Auditor for the said Books as Ledgers containing a rent roll of Land as set forth in his Memorial to your Excellency in Council the 24th June 1766 for the several and respective Counties in his Majestys district of North Carolina which your Memorialist refused to do not having been called upon properly before to examine the said Books nor having received positive orders from the Auditor General with respect to receiving them into his office,—Your Memorialist however from the great appearance of rain and to prevent Books of such labour and consequence to the Crown suffering by being exposed in an open cart, received the same into his Custody and acknowledged by a Memorandum delivered the said Mr Green that the fourteen Volumes of Books in Folio and two stitched in sheets were left in the hands of your Memorialist the deputy Auditor to examine the same—Your Memorialist tho' very unequal in judgment to a task of that Consequence having since taken some pains to inspect and look over the said volumes intended as rent Roll does not in his opinion think the said Books completely finished nor fit to receive into the Auditors office as they now are.

Your Memorialist the deputy Auditor—Therefore Humbly prays that as this is a work of too great consequence to the Crown to rest on his Judgment he may be permitted to lay before your Excellency and Honours one or two Volumes of the said Rent Roll so that he may be endulged with the opinion of this Honourable Board, if the said Books are in proper condition to be received

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into the Auditors office under the name of a rent roll as they now are—And your Memorialist as in duty bound will ever pray”——

(signed)
BENJAMIN HERON, D. Aud—

Mr Rutherford the Receiver General prayed leave to give in his answer to the above Memorial. Ordered that the same be delivered in tomorrew morning

Read sundry warrants from No 642, to 693 inclusive, except No 691 laid by for better location.


At a Council held at Wilmington 22d October 1767.
Present
His Excellency the Governor.
The Honble James Hasell Esquire
The Honble John Rutherford Esquire
The Honble Lewis DeRosset Esquire
The Honble John Sampson Esquire
The Honble William Dry Esquire &
The Honble Benjamin Heron Esquire

The Receiver General brought in his answer to the memorial of Yesterday presented by the deputy auditor. Ordered the same be read and is as follows.


North Carolina—Ss.
To His Excellency William Tryon Esqr His Majestys Captain, General and Governor in Chief in and over the said Province and to the Members of His Majestys Honorable Council

The Answer of John Rutherford His Majestys Receiver General, Sheweth,

That Benjamin Heron Esqr Deputy Auditor having by his Memorial of the 20th Instant desired permission to lay before your Excellencys and Honours one or two volumes of what he calls the rent roll to know if they are in a proper condition to be received into the Auditor Office as they are now.

Your respondent in answer to the said Memorial begs leave to inform your Excellency and the Board that the deputy auditor mistakes in supposing these Ledgers were delivered to him as a compleat Rent Roll, Whereas they were delivered to him only as preparatory to a Rent Roll being obtained in the manner set forth in this Memorial to your Excellency in Council the 24th of June 1766.

Your respondent does not doubt that your Excellency and Honours upon examining the said fourteen large volumes and two small ditto will find they are compleated agreeable to this said Memorial

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of the 24th June 1766, and adequate to the sum allowed by the Right Honble the Lords Commissioners of the Treasury for that service and that the said Ledgers will tend greatly to the advantage of the Crown to facilitate the forming a compleat Rent Roll in a few years provided a reasonable allowance be annually allowed to a proper person to keep posted up the said Ledgers

Your respondent therefore Humbly prays your Excellency and Honours to order the deputy Auditor to continue the said 14 volumes and two stitched in sheets in his Custody as a Register of Lands in his Majestys District of this province until he receives your Excellencys further orders on that head and is in duty bound your Memo shall ever pray

(Signed)
JNo RUTHERFORD, Recr Gen.

October 22d 1767.

It not appearing to this Board that the Receiver General had any anthority or direction for delivering the folio Rent Roll recited in the Memorial of the deputy auditor it is ordered that the Receiver General receive the same Books again into his possession to be compleated to the 24th of June, 1766, when the recommendation of His Excellency was made to the Lords of the Treasury in behalf of the Receiver Generals claim for the above service and that the receiver General may be furnished with the Extracts of deeds and Conveyances to compleat this work ordered that the Secretary require in the most express terms from the registers of the Counties in his Majestys district, that they deliver to the Secretarys office Extracts of the several Conveyances in their respective offices agreeable to the Returns made by the Receiver General on or before the 5th day of April next and a reasonable allowance for their trouble will be paid by the receiver General


At a Council held at Wilmington October 23d 1767
Present
His Excellency the Governor
The Honble James Hasell Esquire
The Honble John Rutherford Esquire
The Honble Lewis DeRosset Esquire
The Honble Robert Palmer Esquire
The Honble John Sampson Esquire
The Honble William Dry Esquire
and
The Honble Benjamin Heron Esquire

His Excellency represented to this Board that Mr Obadiah Holt late Sheriff of the County of New Hanover for the year 1766 was returned by the County Court in March 1767 as a proper person to

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serve as Sheriff for the said County for the ensuing year, In virtue of which his Excellency issued a Commission to the said Holt bearing date the 16th of April 1767 which Commission was accepted by the said Holt—That since the above appointment his Excellency has been informed the said Holt has omitted to Qualify himself for the Execution of his office according to act of Assembly notwithstanding which his Excellency understands he is now acting as Sheriff for the County of New Hanover in the Superior Court now sitting—Therefore his Excellency desires the opinion of this Board what measures should be taken under the circumstances—It is the unanimous opinion of this Board that his Excellency require the opinion of the Chief Justice and Attorney General regarding the Legality of Mr Holt's acting as Sheriff—whereupon the following Message was sent to the Chief Justice and Attorney General Mutatis Mutandis.

His Excellency in Council not being of opinion that Mr Holt is duly qualified to act as Sheriff for New Hanover County desires the Chief Justice and Attorney General will forthwith examine into the validity of the Authority by which he now Acts, and that they report the same to this Board.

In answer to which his Excellency Received the following Reports.

In answer to the Message received this day from your Excellency in Council the Chief Justice has the Honour to represent That no sheriff being legally appointed for the County of New Hanover on the eighth day of September Anno Domini in 1766 according to the rules established by Act of Assembly—your Excellency to prevent a failure of Justice did by your own authority grant a Commission to the said Mr Holt appointing him Sheriff during your pleasure and that he therefore gave security to execute the said office during his continuance therein. That—At the County Court in March Anno Domini 1767 the said Mr Holt being with two others returned to your Excellency as a fit person to serve in the said office for the then ensuing year your Excellency was pleased to prefer the said Mr Holt and gave him a Commission accordingly—

That—The said Mr Holt did not qualify and give security after receiving the last mentioned Commission That—The said Mr Holt has nevertheless continued to exercise the said office in all its branches except in collecting the publick dues and Taxes.

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The Chief Justice therefore inclines to the opinion that the first Commission of the 6th September 1766 is a good authority for Mr Holts continuing to act as Sheriff in as much as there has been no effectual appointment of another sheriff according to act of Assembly and in as much as the said Mr Holt hath not been otherwise superseded—The Chief Justice acknowledges he has not so fully considered the subject as he could wish being engaged in Court in the midst of Crown Business but thinks it by far the safest with regard to the publick that Mr Holts Acts should be considered hitherto as valid

M. HOWARD.

October 23rd 1767.

To His Excellency and the Honorable Members of his Majestys Council.

In answer to your Excellency and Honours Message of this day requiring my report on the validity of the Sheriff of New Hanover's Commission granted I am of opinion that your Excellency's Commission to Mr Holt dated the 16th of April 1767 is a supersedeas to his former one, and as he has not qualified, and given security according to the Act of Assembly in such case provided, under his last Commission, I am further of opinion that he derives no authority under it, and consequently that he is no legal Sheriff at this time

THOs McGUIRE Att. Genl

October 23d 1767.

After mature consideration it is the unanimous opinion of this Board, That Mr Obadiah Holt has not been legally invested with the office of Sheriff since the last day of the County Court held in September last for the County of New Hanover and that all acts and deeds by him done as Sheriff since that time are null and void: and that if his Excellency finds it expedient he will issue a proclamation declaring the same; and that this opinion be forthwith sent to the Chief Justice and Attorney General.


At a Council held at Wilmington the 27th October 1767
Present
His Excellency the Governor
The Honble John Rutherford Esquire
The Honble Lewis DeRosset Esquire
The Honble John Sampson Esquire
The Honble Robert Palmer Esquire
and
The Honble Benjamin Heron Esquire
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Passed sundry patents from No 502 to 515 inclusive; His Excellency considering the evil consequences that would attend the publick by Mr Obadiah Holts acting as sheriff without qualifying as the law directs—proposed a Proclamation issue agreeable to the opinion of this Board of the 23rd instant Ordered a Proclamation issue in the following words—Vizt


North Carolina—Ss.
By His Excellency William Tryon Esquire, Captain General, Governor and Commander in Chief in and over the said Province. A Proclamation.

Whereas at a Council held at Wilmington the 23rd day of this Instant October it was the unanimous opinion of the Board that Obadiah Holt Esqr has not been legally invested with the office of Sheriff for the County of New Hanover since the last day of the Inferior Court of Pleas and Quarter Sessions held in September last for the said County and that all Acts and deeds by him done since that time are null and void. I have therefore thought fit by and with the advice and consent of his Majestys Council to issue this Proclamation to notify the same to all whom it may concern.

Given under my hand, and the Great Seal of the said Province at Wilmington the 27th day of October in the eighth year of His Majestys Reign—Anno Domini 1757.

WILLIAM TRYON.
By His Excellencys Command
Benjamin Heron, Secretary.

Ordered that the Secretary remove to Newbern by the 2d of December next where the Assembly is to be held, the Council Journals, Chancery Dockett and papers relative to the causes to be heard there.

Ordered also that the Secretary advertise the Court of Claims to be held again at Wilmington the 20th April 1768.