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Colonial and State Records of North Carolina
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Memorial from the North Carolina General Assembly concerning rights of attachment
North Carolina. General Assembly
1775
Volume 09, Pages 1147-1149

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[B. P. R. O. No. Carolina. B. T. Vol. 19.]
Memorial of the North Carolina Assembly to the Earl of Dartmough and the Board of Trade.

The Memorial of Thomas Barker and Alexander Elmsly, on behalf of the Assembly of the Province of North Carolina, humbly sheweth to your Lordships, that as far back as your memorialists have been able to trace the Laws of the said Province, and as they believe from the first establishment thereof, they find it has been the uniform practice in the Courts of Law as often as personal process cannot be served on the Body of a Debtor, or other Defendant, by reason of his absence or non residence, or by reason of His absconding or concealing himself in order to avoid of service of such Process, to sue out Attachments against the Estate of such Defendant, repleviable on putting in Bail as in Cases of Arrest.

That the Act of Assembly on which these Attachments are founded, viz: The Act for Establishing and regulating the Superior Courts of Justice being near expiring,

The General Assembly some time in the year one Thousand, seven hundred and seventy three, prepared and passed a Bill for continuing the same indefinitely, but his Excellency the Governor, having received an Instruction directing that the Process of Attachment should be put upon the same footing as in England, and the Assembly conceiving that such Regulation would materially affect the Credit of the Colony in rendering it often difficult and sometimes impossible for a Creditor to recover his just debt, The Bill did not pass into a Law, being thrown out in the Council, As the Upper House of Assembly, upon which the Agent of the Province in London was charged by the Assembly to present a dutiful and Loyal Address to His Majesty praying that he would be graciously pleased to recall the said Instruction and to permit his Governor to give his assent to the Bill as prepared and passed in the Lower House of Assembly, and your Memorialists have been informed that other Instructions have since been transmitted to the Governor, extending the Right of Attachment, to all cases where the cause of Action shall arise in the Province or in either of the two neighbouring Colonies of South Carolina and Virginia.

On the subject of these last Instructions your Memorialists pray leave to represent to your Lordships that the intercourse between the

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Provinces of South and North Carolina, and the commerce carried on between them, is inconsiderable compared to the Trade which the Colonies of New York and the Massachusetts Bay have with North Carolina, and should an Act pass agreeably to these Instructions it will follow that the Northern Colonies equally Creditors with the Colony of Virginia and much more so than South Carolina, will often loose their Debts, when the Southern Colonies have theirs secured to them.

Your Memorialists pray leave further, to represent to your Lordships, that having resided many years in the Provinces, and been themselves connected with the Courts of Justice they have had frequent occasions of observing the general Effect of the Attachment Laws, in America, and beg leave to suggest to your Lordships, that the fluctuating unsettled state of the Colonies considered, Attachments are of indispensable necessity, and do consequently take place your Memorialists believe over all the Continent, nor have they ever heard them complained of, either here or there, except in the single case of their taking place in favour of American creditors, of Commissns of Bankrupt sued out in England, which inconvenience your Memorialists doubt not, the Legislature of North Carolina would readily provide a remedy for if permitted to put their Court Laws on the same Footing, in other respects as formerly.

Your Memorialists are also charged by the Assembly to solicit an Instruction to the Governor to give his assent to an Act to be passed for extending the jurisdiction of the County Courts. The extent of the Settlement is of late years become so great, and the distance of many of the Inhabitants from the Superior Courts such, considering the bad accommodations in many parts of the Country, as to render it extremely expensive and inconvenient to attend their Tryals in those Courts, for which reason Creditors frequently loose their Debts to avoid the fatigue and expence of recovering them. This indulgence they have the greater reason to hope will be granted them as the jurisdiction was but very lately much higher than at present, and at this time in neighboring Colony of Virginia, it is unlimited in all Civil Cases without Exception in County Courts.

Your Memorialists have it likewise in charge to make Application for an Instruction to the Governor to give his Assent to an Act for repealing so much of the Fee Bill now in force as relates to the Chief Justice, on granting him a Salary in Lieu of his Fees. The permanency of such an Establishment they conceive would be more suitable

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to the Dignity of that important office, than the precarious and uncertain Emoluments arising from his Fees, and on the other hand when they consider the rapid and uniform increase of Inhabitants, they fore see that in time, the office of Chief Justice may become more lucrative than that of the Commander in Chief.

All which is humbly submitted to your Lordships by your Memorialists,

THOMAS BARKER,
ALEXd ELMSLY.