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Colonial and State Records of North Carolina
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Acts of the North Carolina General Assembly, 1740
North Carolina. General Assembly
February 05, 1740 - February 27, 1740
Volume 23, Pages 131-135

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LAWS OF NORTH CAROLINA, 1739.

At a General Assembly, held at New Bern, the Twenty Fifth Day of February, in the Year of our Lord One Thousand Seven Hundred and Thirty Nine. Gabriel Johnston, Esq., Governor.

CHAPTER I.
An Act, appointing a Treasurer for the several Counties herein mentioned, in the Room of William Downing, Esq., deceased. Obs.

(Omitted.)

CHAPTER II.
An Act, to ascertain the Allowance of His Majesty's Council, and the Members of Assembly, of this Province, and for Payment of all Claims; and to prevent letting out any more of the Loan Money on Interest. Exp.

(Omitted.)

CHAPTER III.
An Act, prescribing the Manner of Proving Book Debts.

I. Whereas the Trade and Merchandize in this Province, is chiefly carried on by Retail, and Goods, Wares, and Merchandizes are generally delivered to those that buy them by the Retailer himself, and it very frequently happens, that no Body is privy thereto but the Buyer and Seller, so that in many Cases, there may be a Defect of Legal Evidence to charge such Buyer, and by that Means the fair Trader may be hindered from recovering a just Debt: And forasmuch as no Law now in force doth determine what shall be lawful Evidence in such Cases, and many Disputes and Difficulties in the several Courts of this Province do frequently arise thereupon, and different Notions and Opinions prevail, and altho' allowing the Plaintiff, in all Cases, to prove his Debt by his own Oath, may have been attended with great Inconveniences, and occasioned frequent Perjuries, yet, on the other Hand, it may be necessary, for the Support of Trade, in such a Course of Dealing, to allow the Plaintiff's Book, proved by his own Oath, to be given in Evidence:

II. Be It Therefore 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 wherever any Person or Persons hereafter shall bring any Action of Debt, or upon the Case, and therein shall declare, upon an Emisset, or Indebitatus Assumpsit, or Quantum Valebant, or Quantum Meruit, for Goods, Wares, or Merchandizes, by him sold and delivered, to any person or Persons,

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or for Work or Labour done and performed, and upon the Tryal of such Action, shall declare, upon his Corporal Oath, or solemn Affirmation, as the Case may be, that the Matter in Dispute is a Book Account, and that he hath no Means to prove the Delivery of the Articles therein contained, or any of them, but by his Book; in that Case, such Book, provided it contain the first Entry, shall and may be given in Evidence upon Tryal, if he shall make out, by his own Oath, that such Book or Books doth contain a true Account of all the Dealings between him and the Defendant from the Beginning, or the last Settlement of Accounts between them, and that all the Articles therein charged were, bona fide, delivered, and that he hath given all just Credits, due to the Defendant, in such Account; and such Book or Books, and Oath, shall be admitted and received as good Evidence for any of the Articles, for Goods delivered within Eighteen Months before the same Action brought, but not for any article of a longer Standing: And where the Person who delivered such Goods, Wares, or Merchandize, shall die, his Executors, or Administrators, may give his Book or Books in Evidence, upon his or their making Oath, that there are no witnesses, to his or their Knowledge, capable of proving the delivery of the Goods or Merchandizes therein mentioned, and that he or they found the Book or Books, so stated, and do not know of any Credit to be given; and such Book and Oath shall be admitted and received as Evidence for any of the Articles for Goods delivered within the Time aforesaid.

III. Provided nevertheless, That the Defendant shall be at Liberty to contest the Plaintiff's Evidence, and to oppose the same by legal Evidence; and where the Defendant shall be an Executor or Administrator his Testator or Intestate's Book shall and may be given in Evidence against the Plaintiff's Book, where the Plaintiff is Executor or Administrator.

IV. Provided also, and be it further Enacted That no Book of Accounts, altho' the same may be proved by any Witness or Witnesses, shall hereafter be admitted or received in Evidence in any Action, for any money due for Goods, Wares or Merchandizes, hereafter to be delivered, or for Work hereafter to be done, above Five Years before the same Action brought; except in case of Persons residing in Great Britain, or in other Parts beyond the Seas, or out of the Government, or where the Accounts shall be settled and signed by the Parties.

V. Provided nevertheless, and be it further Enacted, That for the Recovery of any Debt now due, for Goods, Wares, and Merchandizes, heretofore delivered, the Plaintiff, within Eightheen Months after the Passing of this Act, shall be allowed to give his Book in Evidence, being proved by his own Oath, in the Manner before directed; and in Case of Executors or Administrators, the like Evidence shall be admitted and received, as is before directed for the Recovery of any debt hereafter to be contracted.

VI. Provided also, That no such Evidence as is herein before mentioned, shall be admitted, received, or taken, in any of his Majesty's Courts of Record in this Province, as a Sufficient legal Evidence, in any Cause wherein the Debt, or the Sum sued for, exceeds Twenty Pounds Proclamation Money; or for any Specie or Commodity or work done that surmounts the value of the said Twenty Pounds Proclamation Money; anything herein contained to the Contrary notwithstanding.

VII. Provided also, That nothing in this Act shall extend to any Ordinary-keepers Accounts; but that the said Ordinary Accounts shall be recovered in Manner as by other Acts heretofore are directed.

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CHAPTER IV.
An Act, for Erecting the Village called Newton, in New Hanover County, into a Town and Township, by the Name of Wilmington, and Regulating and ascertaining the Bounds thereof.

(See Ch. 4, Acts 1740.)

I. Whereas several Merchants, Tradesmen, Artificers, and other Persons of good Substance, have settled themselves at a Village Called Newton, lying on the East Branch of Cape Fear river; and Whereas the said village by reason of its convenient situation at the meeting of the Two Great Branches of Cape Fear River, and likewise, by Reason of the Depth of Water, is capable of receiving Vessels of considerable Burthen, Safely in its Roads beyond any other part of the River, and the secure and easy Access from all Parts of the diffrent Branches of the said River, is, upon all those and many other Accounts, more proper for being erected into a Town or Township, than any other part of the said River.

II. Be it Therefore 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 the Village heretofore called Newton, lying on the East side of the North East Branch of Cape Fear River, in New Hanover County shall, from and after the passing of this Act, be a Town and Township, and the said Village is hereby established a Town and Township, by the Name of Wilmington, the Bounds whereof shall be and are circumscribed in Manner following; that is to say, to the Northeast, by the Lands of his Excellency Gabriel Johnston, Esq.; upwards, and below, by the Lands of Michael Dyer; to the Westward, by the Northeast Branch of Cape Fear River; and to the Eastward, by a Line drawn between the said Lands of his Excellency Gabriel Johnston, Esq., and Michael Dyer, One Hundred and Twenty Poles from the River.

III. And be it further Enacted by the Authority aforesaid, That for ever, after passing this Act, the Inhabitants of and near the said Town, qualified as herein after mentioned, shall have the priviledge of chusing one Representative for the said Town, to sit and vote in General Assembly.

IV. And for ascertaining the Method of chusing the said Representative, Be it further Enacted, by the Authority of the same, That every Tenant of any Brick, Stone, or framed habitable House, of the Length of Twenty Feet, and Sixteen Feet Wide, within the Bounds of the said Town, who, at the Day of Election, and for three months next before, inhabited such House, shall be entitled to vote in the Election for the Representative of the said Town, to be sent to the General Assembly: And in Case there shall be no Tenant of such House in the said Town, on the Day of Election qualified to vote as aforesaid, that then, and in such Case, the Person seized of such House, either in fee simple, or fee tail, or for Term of Life, shall be entitled to vote for the Representative as aforesaid.

V. And be it further Enacted, by the Authority aforesaid, That every Person Who, on the Day of Election, and for Three Months next before, shall be in actual possession or an Inhabitant of a Brick House, of the Length of Thirty Feet, and Sixteen Feet wide, between the Bounds of the said Town upwards, and Smith's Creek, and within One hundred and Twenty Poles of Northeast Branch of Cape Fear River, shall be entitled to, and have a Vote in the Election of a Representative for the said Town, (unless such a Person be a Servant) and shall, as long as he continues an

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Inhabitant of such House, within the said Bounds, enjoy all the Rights, Priviledges, and Immunities, to which any Inhabitant in the said Town shall be entitled, by virtue of this Act.

VI. And be it further Enacted, by the Authority aforesaid, that no Person shall be deemed Qualified to be a Representative for the said Town, to sit in the General Assembly, unless, on the Day of Election, he be, and for Three Months next before, was seized, in Fee Simple, or for Term of Life, of a Brick, Stone, or framed House, of the Dimensions aforesaid, with one or more Brick Chimney or Chimnies.

VII. And be it further Enacted, by the Authority aforesaid, That for ever, after the passing of this Act, the Court of the County of New Hanover, and the Election of the Representatives to be sent to the General Assembly, and the Elections of Vestrymen, and all other Public Elections, of what kind or Nature soever, for the said County and Town, shall be held and made in the Town of Wilmington, and no other Place whatsoever; any Law, Statute, Usage or Custom to the Contrary, notwithstanding.

VIII. And be it further Enacted, by the Authority aforesaid, That from and after the passing of this Act, the Collector and Naval Officer of the Port of Brunswick, (of which Port the said Town of Wilmington is the most central and convenient Place, both for Exportation and Importation, by Reason of its Navigation and Situation), shall constantly reside in the said Town, and there keep their respective Offices, until his Majesty shall be pleased to, give his Directions to the contrary: And likewise, the Clerk of the Court of the County of New Hanover, and the Register of the said County shall constantly hold and execute their respective Offices in the said Town of Wilmington: And that if either of the said Officers neglect or refuse so to do, he so neglecting or refusing, shall for every Month he shall be a Delinquent, forfeit and pay the sum of Five Pounds Proclamation Money; to be sued for and recovered, by him who shall sue for the same, in the General Court of this Province, or in the County Court of New Hanover, by Action of Debt, Bill, Plaint, or Information, wherein no Essoign, Protection, Injunction, or Wager of Law, shall be allowed, and one Half of such Forfeiture shall be for the Use of the Person who sues for the same, and the other Half paid to the Commissioners, for the Time being appointed for regulating the said Town.

IX. And for the due regulation of the said Town, Be it further Enacted, by the Authority aforesaid, That Robert Halton, James Murray, Samuel Woodard, William Farris, Richard Eagles, John Porter, and Robert Walker, Esquires, are hereby established and appointed Commissioners for the said Town; and the said Commissioners, or a Majority of them, and their Successors, shall have, and be invested, with all Powers and Authorities, within the Bounds of the said Town of Wilmington, in as full and ample Manner, as the Commissioners for the Town of Edenton have or possess, by Virtue of any Law heretofore passed.

X. And whereas the Justices of the County Court of New Hanover, at the Court held at Brunswick, on Tuesday the Eleventh Day of December last, have imposed a Tax of five Shillings per Poll, to be levied on the Tithable Inhabitants of the said County, between the First Day of January, and the First Day of March, One Thousand Seven Hundred & Thirty Nine; and after wards, one other tax of Five Shillings per poll to be levied on the said Inhabitants between the first Day of January and the first day of March, One Thousand Seven Hundred and Forty; towards building a Court House and Gaol in the Town of Brunswick, for the said County.

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XI. Be it Enacted, by the Authority aforesaid, That the Justices of the the said County Courts shall, and are hereby directed, to apply the said levy or Tax towards finishing and compleating the Court House already erected in the said Town of Wilmington, and towards building a Gaol in the said Town.

XII. And be it further Enacted, by the Authority aforesaid, That if any one or more of the said Commissioners shall die, or remove out of the County, that then and in such Case, the surviving or remaining Commissioners shall, within Six Months after the Death or Removal of such Commissioner, present to his Excellency the Governor or Commander in Chief for the Time being, Three Persons, one of which the said Governor or Commander in Chief is hereby impowered to nominate and appoint; and the Commissioner so appointed shall be invested with the same Powers and Authorities, as any Commissioner nominated by this Act.

Signed by
GABRIEL JOHNSTON, ESQ., Governor,
William Smith, President,
JOHN HODGSON, Speaker.