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Acts of the North Carolina General Assembly, 1739
North Carolina. General Assembly
February 06, 1739 - March 06, 1739
Volume 23, Pages 122-128

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LAWS OF NORTH CAROLINA, 1738.

At a General Assembly held at New Bern, the Sixth Day of March, in the Year of Our Lord One Thousand Seven Hundred and Thirty Eight. Gabriel Johnston, Esq., Governor.

CHAPTER I.
An Act for providing His Majesty a Rent-Roll for securing His Majesty's Rents, for the Remission of Arrears of Quit Rents, and for quieting the Inhabitants in their Possessions; and for the better settlement of His Majesty's Province of North Carolina.

(Repealed by Orders in Council and Omitted.)

CHAPTER II.
An Act to prevent the concealment of Tithables in the several Counties within this Province, for declaring what Persons shall be deemed Tithables, and for defraying the standing and contingent Charges of Government of their Continuance in Office, and directing their Duty therein, and for Granting to his Majesty a Poll-Tax of Five Shillings per Head, to be levied on the Tithable Inhabitants of this Province.

(Repealed Ch. 2, Acts 1743, and omitted.)

CHAPTER III.
An Act for appointing Sheriffs in the Room of Marshalls of this Province, for prescribing the Method of appointing them, and for limiting the Time of their Continuance in Office, and directing their Duty therein, and for Abolishing the Office of Provost Marshall of this Province; and for altering the Names of the Precincts into Counties.

I. Whereas the Office of Provost Marshall hath been found to be very inconvenient in this extended Province, the Deputy Marshal not only neglecting, but frequently refusing to do their Duty, to the great delay of Justice, which hath occasioned great Murmurs and Discontents among the Inhabitants of this Province, for Remedy whereof, and to the End that Justice may be more effectually administered, and that Sheriffs may be appointed in each and every County within this Government;

II. We pray that it may be Enacted, And be it Enacted, by His Excellency Gabriel Johnston, Esq., Governor, by and with the Advice and Consent of his Majesty's Council, and General Assembly of this Province, and by the Authority of the same, That the Court that shall be held in each and every County next after the Ratification of this Act, and successively at the said Courts every Two Years, shall recommend to the Governor or Commander in Chief of this Province for the Time being, Three such Persons (being Justices in the same County Court) as they shall think most fit

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and able, to execute the Office of Sheriff for their respective Counties, for the two then next succeeding Years; of which Three Persons so recommended, the said Governor or Commander in Chief shall accordingly Commissionate such one as to him shall seem meet for the said Office of Sheriff within such County, for the Two next ensuing Years after such Nomination; during which time the said Sheriff shall not act as a Justice of the Peace in that County.

III. And be it further Enacted, by the Authority aforesaid, That no Person shall, at any time hereafter, be capable to execute or enjoy the Office of Sheriff of any County within this Province, unless such Person, at the Time of his entering into and upon the said Office of Sheriff, shall be a Justice of the Peace in the same County; neither shall it be lawful for any Person to execute or enjoy the said Office for any longer than Two Years, next succeeding each other.

IV. And be it further Enacted, by the Authority aforesaid, that when any Person shall have obtained any Commission for the Office of Sheriff of any County, before he shall be admitted to take the Oath of a Sheriff, or shall enter upon the Execution of his said Office, he shall, at the Court of his County, enter into Bond, to our Sovereign Lord the King, his Heirs and Successors, with Two good and sufficient Securities, in the Sum of at least Five Hundred Pounds Sterling, for his true and faithful Performance of his Office: Which Bond the said County Court is hereby impowered and required to take, and cause to be acknowledged before them in open Court, and recorded in the Records of the County; and shall also, besides taking the Oaths appointed by law for Public Officers, take the following Oath:

I, A. B., do solemnly swear, That I will truly and faithfully execute the Office of Sheriff of the County of C. to the best of my Skill and Ability agreeable to Law; and that I will not take or receive any Bribe from any Person for returning any man to serve as a Juror on any Jury, or for making false Returns of Writs, during the Time I shall continue in the said Office. So help me God.

V. And be it further Enacted, by the Authority aforesaid, That every Person hereafter commissioned to be a Sheriff, for any County within this Province, upon a Recommendation of the County Court in Pursuance of this Act, and thereupon refusing to accept the Office of Sheriff, and to perform the Duty thereof, shall forfeit the Sum of Eight Pounds, Proclamation Money, payable to the next succeeding Sheriff; to be recovered as other Fines and Forfeitures in this Act directed.

VI. And be it further Enacted, by the Authority aforesaid, That if any County Court shall hereafter neglect or refuse to recommend Three Persons to be Sheriffs, according to the Directions of this Act, it shall and may be lawful, in such Cases, for the Governor or Commander in Chief of this Province for the Time being, and he is hereby impowered, to appoint, by his Commission, any one Person, nominated a Justice of the Peace for the said County, as he shall think Proper, Tho' such Person be not then sworn a Justice; and if such Person shall hereafter refuse to accept the Sheriff's Office and to perform the Duty thereof, pursuant to his Commission, he shall forfeit the Sum of Eight Pounds Proclamation Money; to be paid as aforesaid.

VII. And be it Enacted, by the Authority aforesaid, That if any Person, being one of Three Persons recommended by the Justices of the County and appointed Sheriff in Pursuance of the said Act, shall happen to die in the Time of his Sheriffalty, it shall and may be lawful, in such Case, for the Governor or Commander in Chief of his Province for the Time being, and he

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is hereby impowered, to appoint one of the Surveyors recommended as aforesaid, to be Sheriff, in his Room; And when any Sheriff appointed upon a Neglect or Refusal of the County Court to recommend Three Persons, according to the Directions of this Act, shall happen to die in the Time of his Sheriffalty, it shall be lawful for the Governor or Commander in Chief for the Time being, and he is hereby impowered, to appoint by his Commission, any one Person nominated a Justice in the Commission of the Peace; altho' such new appointed Person be not sworn a Justice; And whatsoever Person so appointed Sheriff upon the Death of another, shall refuse to accept the Office of Sheriff, and perform the Duty thereof, pursuant to his Commission, he shall forfeit the Sum of Eight Pounds Proclamation Money; to be recovered and paid as aforesaid.

VIII. Provided always, That no Member of his Majesty's Council, a Member of the House of Assembly, or elected as such tho' acting as a Justice of the Peace, shall be obliged to execute the Office of Sheriff; any Thing contained in this Act to the contrary, notwithstanding.

IX. And be it further Enacted, by the Authority aforesaid, That all Fines and Forfeitures mentioned in this Act, not otherwise applied, shall be to our Sovereign Lord the King, his Heirs and Successors, for and towards the support of this Government, and the contingent Charges thereof; and shall and may be recovered, with Costs, by Action of Debt, Bill, Plaint, or Information, in any Court in this Province wherein no Essoign, Protection, or Wager of Law, shall be allowed or admitted of.

X. Provided always, That if any Person hereafter appointed to execute the Office of Sheriff, in any County in this Province, shall be willing to execute the same, but cannot get sufficient Security, for the Performance of his Duty therein, as by the said Act is required, shall make Oath, in the Court of the County for which he shall be appointed Sheriff, that he hath used his best Endeavours, truly and bona fide, without Covin and Collusion, to get Security for the Performance thereof, (which Oath the said County Courts are hereby impowered and required to administer) that then such Person making Oath as aforesaid, shall not incur, or be liable to the Forfeiture of the Sum of Eight Pounds Proclamation Money, in this Act mentioned; anything in this Act to the Contrary thereof, in any wise, notwithstanding.

XI. And be it further Enacted, by the Authority aforesaid, That every Sheriff by himself, or his lawful Deputy or Deputies, shall execute all such Writs and Precepts, from Time to Time, as shall be to him directed, according to the Demand thereof; and also, shall make due return thereof in Manner following; that is to say, All Writs and Precepts returnable in any County Court, shall be executed, and Returns thereof made, at least Five Days (excluding Sunday) before the Day therein mentioned for the Return; and all Writs and Precepts returnable in the General Court, shall be executed according to the several Acts of Assembly of this Province, and Return thereof shall be made the First Day of the sitting of the Court: And every Sheriff failing to make sufficient Return of all or any of the Precepts to him directed, as aforesaid, and according to the several Times hereinbefore limited, shall, for every such Offence, forfeit and Pay the Sum of Five Pounds Proclamation Money, unless the Sheriff shew sufficient Cause for such neglect; one Moiety thereof to our Sovereign Lord the King, his Heirs and Successors, for and towards the Support of the contingent Charges of this Government, and the other Moiety to him or them that shall sue for the same, To be recovered, by Action of Debt, Bill, Plaint, or Information, in any Court of Record within this Province, in which no Essoign, Protection,

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or Wager of Law, shall be allowed; and moreover, such Sheriff so failing as aforesaid, shall be liable to an Action at Common Law, at the Suit of the Party injured, for any Damage which shall be sustained by such failure: And if any Sheriff by himself, Officer or Deputy, having executed any Writ or Precept to him directed, shall, by himself, Officer, or Deputy, make false Return thereof, every such Sheriff so offending, shall forfeit and pay the Sum of Ten Pounds Proclamation Money, to be recovered and applied as aforesaid; and also, shall be liable to an Action at Common Law, at the Suit of the Party grieved, for any Damage which shall be sustained by such false Return.

XII. Provided always, That it shall not be lawful for any Sheriff, or his Officer, or Deputy, to execute any Writ or Precept upon the Lord's Day, commonly called Sunday, or upon any Person excepted, or upon the several Days prohibited by the Laws of this Province; and the Execution of any Writ or Precept contrary to the True Meaning hereof, is hereby declared to be null and void: Anything herein contained to the Contrary notwithstanding.

XIII. Provided nevertheless, That it shall and may be lawful for the Sheriff, his Officer, or Deputy, at any Time or Place whatsoever, to arrest and apprehend any Person for Treason or Felony, or Suspicion of Felony, or being accessory thereto, or for any Riot or Breach of the Peace, or upon any Escape out of Prison; any Thing therein contained to the contrary thereof, notwithstanding.

XIV. And be it further Enacted, by the Authority aforesaid, That no Sheriff, or any of his Officers, or Deputies, shall take, or cause to be taken or made, any Obligation, for any Cause whatsoever, by Colour of their Office, but only to themselves, of any Person, nor by any Person, which shall be in their Ward, by the Course of the Law, but by Name of their Office, and upon Condition Written, That the Prisoner or Prisoners shall appear at the Day contained in the Writ, Precept, Bill, or Warrant, and in such Places as the aforesaid Writs, Precepts, Bills or Warrants, shall require, and any Sheriff or other Officer taking an Obligation in any Form, by Colour of that Office, the same shall be null and void.

XV. Provided always, That it shall and may be lawful, to and for any Sheriff or other Officer, to take such other Obligation of any Person or Persons in their Ward, as is or shall be particularly and expressly directed, by any other Act, upon any special Case therein mentioned; any Thing herein contained to the contrary, notwithstanding.

XVI. And be it further Enacted, by the Authority aforesaid, That if any Writ or Precept, in any Civil Action, shall be directed to any Sheriff or other Officer, to attach the Body of any Person which is not to be Found within the County where such Sheriff or other Officer resides, in such Case, Return of the same Writ or Precept within the Time limited shall be made, according to the Truth of the Case, and if the Person against whom such Writ or Precept issued, shall not appear, being thereto lawfully called, by Proclamation, in open Court, at the return thereof, an Attachment shall be awarded against his Estate, returnable at the next Court, at which Time, if the Defendant shall fail to appear, the Estate so attached, or so much thereof as shall be sufficient to pay what shall appear to be due to the Plaintiff, with Cost of Suit, shall be subject to such Rules and Regulations as by the Laws of this Province are made and Provided; but if at the Return of the Attachment as aforesaid, the Defendant shall appear, and give special Bail, then the Attachment shall cease and become void, and the Tryal shall proceed as in

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other like Cases, and as if the Defendant had appeared at the Return of the first Writ or Precept.

XVII. Provided always, That no Sheriff or other Officer, shall make Return upon any Writ or Precept, against whom the same issued is not to be found, until he shall have been at the Dwelling house or Place of Residence of such Person, and not finding him, shall there have left an attested Copy of the same Writ or Precept.

XVIII. Provided also, That if any Writ or Precept shall be delivered to any Sheriff or other Officer, to attach the Body of any Person being a known Inhabitant of another County, and not of the County where the said Sheriff resides, in such Case the Sheriff or Officer shall make Return according to Truth of the Case, and not that the Person is not to be found in his County; and thereupon an Alias shall issue, directed to the Sheriff where such Defendant may reside, and that no Variance of the Addition of the Place of Abode shall be deemed Error.

XIX. And be it further Enacted, by the Authority aforesaid, That from and after the Ratification of this Act, it shall and may be lawful for the Sheriffs of the several Counties of this Province, to take and receive to themselves, the several Fees appointed by the Laws of this Province; and liable to, the Penalties for taking extravagant or more Fees than are by Law established.

XX. And be it further Enacted, by the Authority aforesaid, That the Sheriff or Deputy of each County shall, by Turns, attend the General Court, according to a Rule, to be established by the said Court; and shall and are hereby impowered, in Case of default or non-Appearance of Jurors on any principal Pannel, to summon any By-standers, that are Freeholders and qualified to serve as Jurors, tho' such Freeholder or Freeholders may reside in any other County than where the General Court is Held; and that every Sheriff, or his Deputy, shall constantly attend at the Court of the County for which he is Sheriff.

XXI. And whereas Sundry Suits have been, and are now depending in the General Court, or the Courts heretofore called Precinct Courts in this Province, the Process whereof have been executed by the Provost-Marshal or his Deputies: Be it Enacted, by the Authority aforesaid, That in all such Cases, the Provost-Marshal in whose Time such Process was executed, shall be as liable and subject to such payments and Orders of the General Court, or the Courts heretofore called Precinct Courts, as he might or ought to have been if this Act had never been made, and shall be intituled to the same Fees as by Law are appointed in such Case: Any Thing Herein contained to the contrary, notwithstanding.

XXII. And be it further Enacted, by the Authority aforesaid, That from and after the Twenty-fifth Day of March, in the Year of our Lord One Thousand Seven Hundred and Thirty Nine, the Office of Provost-Marshal in this Province shall be abolished, and totally cease and determine, as if such Office had never been, And that from and after the Ratification of this Act, the several Precincts within this Province shall be called Counties.

XXIII. And Whereas the Office of Provost-Marshal, by this Act abolished, is vested in Robert Halton, Esq.: who being willing for the Public Good, to give up the said office, and the Assembly taking the same into Consideration, have agreed to give the said Robert Halton, Esq., the Sum of Two Thousand Pounds, Current Bills of Credit of this Province.

XXIV. Be it Enacted by the Authority of the same, That the said Robert Halton, Esq., have the said sum of Two Thousand Pounds paid him out

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of the Public Money of this Province; One Thousand Pounds thereof to be paid at passing of this Act, and the other Thousand Pounds thereof to be paid within Three Years next after, if this Act be not, within that Time, Repealed, or upon Notice of the Royal Assent being given to this Act, to be placed in the Estimate of the Public Accounts of this Province, before the breaking up of this Session; and for which, after the Expiration of the said Three Years, or Notification of the Royal Assent to this Act, which shall first happen, it shall and may be lawful for the Governor or Commander in Chief for the Time being, to issue his Warrant for the same.

CHAPTER IV.
An Act, facilitating the Navigation of the several Ports of this Province and for Buoying and Beaconing the Channels leading from Ocacock Inlet, to Edenton, Bath-Town and New Bern, and from Top-sail Inlet, to Beaufort Town, and other Ports and Inlets within the said Province herein mentioned; and for providing sufficient Pilots for the safe Conduct of Vessels.

(Repealed Ch. 10, Acts 1748, and omitted.)

CHAPTER V.
An Act, declaring what shall be deemed a sufficient Cultivation of Lands already granted, or hereafter to be granted, by His Majesty; and for ascertaining the Manner of granting lapsed Lands.

(Repealed by Orders in Council and omitted.)

CHAPTER VI.
An Act, for appointing Circuit Courts, and for enlarging the Power of the County Courts.

(Repealed Ch. 2, Acts 1746, and omitted.)

CHAPTER VII.
An Act, to appropriate Two Thousand Pounds, Current Bill Money, to erect a sufficient Gaol, and Office and Place for the safe keeping the Records of the General Court, and for Repairing the Court-House at Edenton; and for other purposes therein mentioned. Obs.

(Omitted.)

CHAPTER VIII.
An Act, for the Encouragement and Better Regulation of the Town of Edenton.

(Repealed Ch. 1, Acts 1740, and omitted.)

CHAPTER IX.
An Act, for destroying Vermin within this Province. Exp.

(Omitted.)

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CHAPTER X.
An Act, to Prevent killing Deer, at Unseasonable Times.

I. Be it Enacted by His Excellency Gabriel Johnston, Esq., Governor by and with the Advice and Consent of his Majesty's Council, and General Assembly of this Province, and it is hereby Enacted, by the Authority of the same, That it shall not be lawful to kill or destroy any Deer, running wild in the Woods, or unfenced Ground, in this Government, by Gun, or other Ways and Means Whatsoever, between the Fifteenth Day of February, in each Year, and of the Fifteenth Day of July succeeding, after the Ratification of this Act, And if any Person, not being a Servant or Slave shall kill any Deer contrary to this Act, and be thereof lawfully convicted, the said Person, for every Deer so killed or destroyed, shall forfeit and pay the Sum of Five Pounds, current Money.

II. And be it Further Enacted, by the Authority aforesaid, That if any Servant or Slave, by Order or Command of his or her Master, Mistress, or Overseer, shall kill or destroy any Deer, contrary to this Act, the Master, Mistress, or Overseer giving such Order or Command, and being thereof lawfully Convicted, for every Deer so killed or destroyed, as aforesaid, shall forfeit and pay the aforesaid Penalty of Five Pounds, as if the said Master, Mistress, or Overseer had actually committed the Offence.

III. And be it further Enacted, by the Authority aforesaid, That if any Servant or Slave, of his own accord, without any Order or Command from his or her Master, Mistress, or Overseer, shall kill, destroy, or buy any Deer, contrary to this Act, and be thereof convicted, by the Oath of One credible Witness, before a Justice of the Peace of the County wherein the Offence was committed, for every Deer so killed, or destroyed as aforesaid, the said Servant or Slave shall have and receive, on his or her bare Back, Thirty Lashes well laid on, to be inflicted by Order of the said Justice before whom the said Conviction shall be, unless some sufficient Person will become bound to pay, for the said Servant or Slave, the Sum of Five Pounds Current Money, within Six Months, in Lieu of the said Punishment aforesaid, to the Church Wardens of the Parish where the Offence is committed, for the Uses directed by this Act.

IV. And be it further Enacted, by the Authority aforesaid, That one Moiety of the Forfeitures of this Act, shall be to the Church Wardens of the Parish where such Offence is committed, for the use of the Parish, and the other Moiety to the Informer, to be recovered, with Costs, by a Warrant from any Justice of the Peace within this Government; saving unto all Free People, the Right of Appeal to the County Court where the Offence is committed: Which said Court is finally to determine the same: wherein no Essoign, Protection, or Wager of Law, shall be allowed or admitted of.

CHAPTER XI.
An Act, for appointing a Town on the Plantation where William Webster now Dwelleth, in Hyde County, on the West Side of Matchapungo River.

(Printed in Private Acts, post.)

[Full text of this chapter is available at vol.25, p. 229-230.]

Signed by
GABRIEL JOHNSTON, ESQ., Governor.
William Smith, President.
WILLIAM DOWNING, Speaker.