At an Assembly, begun and held at New Bern, the Twenty-fourth Day of April, in the Thirty-third Year of the Reign of our Sovereign Lord George the Second, by the Grace of God, of Great Britain, France, and Ireland, King, &c., and in the Year of our Lord One Thousand Seven Hundred and Sixty: Being the First Session of this present Assembly. Arthur Dobbs, Esq., Governor.
I. Whereas, the establishment of Inferior Courts for the Tryals of Causes and punishing offenders under proper Limitations and Restrictions would be of great service and General Utility in the several Counties within this Province,
II. Be it Enacted by the Governor, Council and Assembly and by the Authority of the same, That in every County of this Province a Court Quarterly in every Year shall be held by the Justices thereof at the several respective places already assigned for that purpose or at such place or places as shall be hereafter Lawfully appointed upon the Days hereinafter limited for each County respectively, which Courts shall be called Inferior Courts of Pleas and Quarter Sessions and taken and held to be Courts of Record.
III. And be it further Enacted, That every person nominated and appointed a Justice of Peace before his entering upon and executing the said Office shall publickly in the Court House of his County and on a Court Day take the Oaths appointed, or which shall be appointed to be taken by Act of Parliament, take and subscribe the Oath of Abjuration, repeat and subscribe the Test and shall also take the following Oath, to-wit:
I, A. B., do swear that as a Justice of Peace in the County of . . . . . in all articles in the Commission to me Directed I will do equal Right and Justice to the poor and to the rich after my Cunning, Wit and Power and according to Law, and I will not be of Councel in any Quarrel hanging before me. I will not let for gift or other cause but well and truly I will do my Office of a Justice of the Peace as well within the Inferior Courts of Pleas and Quarter Sessions of the said County as without, and I will not take any Fee, Gift or Gratuity for anything to be done by Virtue of my office and I will not Direct, or cause to be directed, any Warrant by me to be made to the parties but I will Direct them to the Sheriff or Constable of the County, or other of the King's Officers or Ministers, or other indifferent person to do execution thereof. So help me God.
And if any person whatsoever shall presume to execute the Office of a Justice of the Peace without first qualifying himself in the manner by this Act before required he shall for every such offence forfeit and pay one hundred Pounds, Proclamation Money, one Moiety to his Majesty, his Heirs and Successors, towards the support of this government, and the other moiety to the Informer to be recovered with Costs by action of Debt in any Court wherein the same is cognizable.
IV. And be it further Enacted, by the Authority aforesaid, That the said Inferior Courts of Pleas and Quarter Sessions shall be constantly held upon the Days hereafter specified for every County respectively, that is to say,
For the County of Craven on the first Tuesday in January, April, July, and October.
Carteret on the first Tuesday in March, June, September and December.
Dobbs on the second Tuesday in January, April, July and October.
Johnston on the third Tuesday in January, April, July and October.
Beaufort on the second Tuesday in March, June, September and December.
Hyde on the first Tuesday in March, June, September and December.
Currituck on the first Tuesday in January, April, July and October.
Pasquotank on the second Tuesday in January, April, July and October.
Perquimons on the third Monday in January, April, July and October.
Chowan on the third Thursday in January, April, July and October.
Bertie on the second Tuesday in January, April, July and October.
Tyrrell on the first Tuesday in March, June, September and December.
Hertford on the first Tuesday in January, April, July and October.
Northampton on the first Tuesday in February, May, August and November.
Halifax on the third Tuesday in March, June, September and December.
Edgecombe on the fourth Tuesday in March, June, September and December.
Granville on the second Tuesday in February, May, August and November.
Orange on the third Tuesday in February, May, August and November.
Rowan on the third Tuesday in January, April, July and October.
Anson on the first Tuesday in February, May, August and November.
New Hanover on the first Tuesday in March, June, September and December.
Bladen on the fourth Tuesday in February, May, August and November.
Duplin on the second Tuesday in February, May, August and November.
Cumberland on the third Tuesday in February, May, August and November.
Onslow on the first Tuesday in February, May, August and November.
And every Adjournment shall be to the next succeeding Court in course and not otherwise,
Provided nevertheless, That if the Business of any of the said Courts cannot be determined on the Court day the Justices may adjourn from Day to Day not exceeding five Days at the end of which time if the Causes and Matters depending before them shall not be finally Determined or otherwise continued in the manner hereinafter Directed the same shall be continued to the next succeeding Court. Provided also, if through sickness or other Inability, badness of Weather, or other accident it shall so happen that a sufficient number of Justices shall not meet for holding the said Courts on the Days herein before appointed in such case, it shall and may be lawfull for any one Justice to adjourn the Court, whereof he shall be a Member from Day to Day not exceeding three Days until a sufficient number of Justices can attend to hold Court.
V. And be it further Enacted by the Authority aforesaid, That none of the said Courts, or Process in any of them depending, shall be Discontinued for or by reason of the Justices failing to hold Court upon the Day by Law appointed or of any alteration of any of the said Days appointed for holding the said Courts, but in every such Case all Suits, Process, Matters and Things depending shall stand continued and all Appearances upon returns of Process shall be made to the next succeeding Court in Course in the same manner as if such succeeding Court had been the same Court to which such process stood continued, or such Returns or Appearances had
VI. And be it further Enacted by the Authority aforesaid, That the Justices of the said Inferior Courts of Pleas and Quarter Sessions, or any three of them, shall and may take Cognizance of and are hereby declared to have full Power and Authority and Jurisdiction to hear and Determine all Causes whatsoever at the Common Law within their respective Counties where the Debt, Damages and Cause of Action is above Forty Shillings Proclamation Money and shall not exceed Fifty Pounds like Money (Actions of Trespass in Ejectment formedon in descender, Remainder, and Reverser, Perjury and Felony, and such Criminal Causes where the Judgment upon Conviction shall be for the loss of life or member excepted) and all petit larcenies, Assaults, Batteries and Trespasses, Breaches of the Peace and other Misdemeanors of what kind soever of an inferior Nature and all Filial Portions and Legacies and distribution of Intestates Estates and other Matters thereto relating, for any Sum or Sums whatsoever and the said Justices of the Peace and every of them at all times during their Continuance in that Office as well within their Inferior Courts of Pleas and Quarter Sessions as Without shall have full Power and Authority as amply and as fully to all intents and purposes as the Justices of the Peace in the Counties of England to preserve, maintain and keep the Peace within their respective Counties.
VII. And be it Enacted by the Authority aforesaid, That the said Inferior Courts respectively, shall and may by Summons or other legal process upon application to them made, compel any person or persons whatsoever having in their possession any Will or Testament of any deceased person to exhibit the same to the Court in order to a legal probation thereof, and also to receive the probate of Wills, and order the same to be recorded and make orders for issuing Letters Testamentary, and Letters of Administration and the Clerk shall and may take two Shillings and eight pence for recording each Will.
Provided always, that any Person who hath a right to execute any Will or to administer the Estate of an Intestate who shall think himself injured by such Order, may enter a Caveat in the Court wherein such Order shall be made against the Person obtaining the same and the Secretary and his Deputy shall forbear to seal and countersign Letters Testamentary or of Administration till the matter in controversy shall be reheard and Determined before the Governor or Commander in Chief for the Time being and Council. And for the better preservation of Wills,
VIII. Be it further Enacted, by the Authority aforesaid, That all orginal Wills shall remain in the Clerk's office among the Records of the respective Counties where they shall be proved whereunto any person may have recourse as to other Records except for the time the same shall or may be removed before any other Court, upon the determination of any Controversy.
IX. And be it further Enacted, by the Authority aforesaid, That the Clerk of every Inferior Court aforesaid in the month of October annually shall return to the Secretary's Office a list of all Certificates for obtaining Probates or Administrations granted by their respective Courts from time to time containing the names of the Testators or Intestates, their Executors or Administrators and the names of the securities which list the Secretary
X. And be it further Enacted by the Authority aforesaid, That the Attorney General is required and authorized to appoint a Deputy in each County within his Province which said Deputy, shall and may prosecute all matters Cognizable in the Inferior Court of Pleas and Quarter Sessions for and in behalf of his Majesty and shall take and receive thirteen Shillings and four pence, Proclamation Money, on each and every bill of indictment found on Presentment made in the said Court in which he or his Deputy shall be.
XI. And be it further Enacted by the Authority aforesaid, That the said Inferior Courts of Pleas and Quarter Sessions respectively, shall, and they are hereby authorized and impowered annually between the first Day of May and the first Day of November, to assess and lay such Tax on the Taxable Persons in their respective Counties as shall be sufficient to Defray the Contingent Charges of the same, which Tax shall be collected by the Sheriff and paid and accounted for in the same manner as publick and Parish Taxes are or shall be by Law directed and by him accounted for and paid to the Court or their Order, and all Debts and Demands above the value of Twenty Shillings Proclamation Money, and not exceeding Forty Shillings like money are hereby declared to be cognizable and Determinable by any two Justices of the Peace who may give judgment and thereupon award Execution against the Goods and Chattels or Body of the Debtor or party against whom such Judgment shall be given, which shall be Executed and returned by the Sheriff or Constable to whom Directed in the same manner as other writs of Fieri Facias or Capias ad Satisfaciendum are to be Executed and Returned and all Debts and Demands of Twenty Shillings like Money or under, any one Justice of the Peace shall have full power and Authority to hear, Try and Determine, and to award Execution in the same manner as is herein provided for two Justices where the Debt or Demand shall amount to Forty Shillings.
Provided nevertheless, that if either of the parties shall be dissatisfied with the Judgment given by the Justice or Justices, He may appeal to the next Inferior Court of Pleas and Quarter Sessions first giving Security for Prosecuting such appeal with Effect, which Cause shall be Tried and finally Determined the same Court without any further process in the same manner as Causes are there tried, brought by Original Petition and Summons and Judgment shall thereupon be given and the party cast shall pay the Costs of all Proceedings had thereon to be taxed by the Court. Provided nevertheless, That the Justice or Justices before whom suit was first heard and Determined shall not sit in Court or give Judgment on the Trial of such Appeal.
XII. And be it further Enacted by the Authority aforesaid, That it shall and may be Lawfull for any Creditor, where his Debt doth not exceed Forty Shillings Proclamation Money, to go before any Justice of the Peace and make Oath how much is justly due to him and that he has grounds to suspect that his debtor hath or intends to remove himself and Effects privately out of the County, and thereupon such Justice (having first taken bond and Security as in other cases of Attachments) shall issue an attachment against the Estate of such Debtor returnable before any two Justices of the County, directed to the Sheriff, or any Constable of the County, and by virtue thereof it shall be Lawfull for such Sheriff or Constable to pursue and attach such Effects and make due return of such attachment, and thereupon
XIII. And be it further Enacted by the Authority aforesaid, That any Justice of the Peace shall, and may have power, and is hereby authorized, upon complaint being made by any person or persons for any matter or thing, Debt, or Damage Cognizable in the Inferior Courts of Pleas and Quarter Sessions of this Province, to grant an Original Attachment against the Estate of any Person absconding or Concealing and removing himself out of the County, returnable to such Court, observing therein the Rules and Restrictions Directed for granting original Attachments returnable to the Superior Courts of Pleas and Grand Sessions.
XIV. And all Sheriffs and other Officers shall Execute and return the same and observe the Rules and Directions appointed to be observed in executing attachments returnable to the Superior Court; and the like judgment Recovery, Relief, Remedy and Proceedings shall be had thereupon as in the like cases is grantable in the said Superior Courts.
XV. And be it further Enacted by the Authority aforesaid, That all Original Process by Writ, Summons, Petition or any other manner or means and all subsequent Process thereupon to bring any person or persons to answer to any action, Suit, Bill, Information or Plaint in any Inferior Court of Pleas and Quarter Sessions (Except Subpoenas to summons Evidences which may be made returnable immediately) shall be Issued and bear Test by the Clerk of every Inferior Court of Pleas and Quarter Sessions respectively, and shall be returnable on the first day of the sitting of the Court, and shall be executed at least five Days before the Return thereof and if any Person Issues any Writ or Process whilst such Court is sitting or within five days before the beginning of the Court such Writ or Process shall be returnable to the Court next after that then sitting or beginning to sit within five days as aforesaid and not otherwise, and all Writs and Process issued, made Returnable or Executed in any other manner or at any other time than is herein before Directed, may be abated on the plea of the Defendant, provided always, that nothing herein contained shall extend or be construed to invalidate or vacate any Writ, Process, Warrant or Precept, issued by any Justice of the Inferior Courts of Pleas and Quarter Sessions, or any Criminal Prosecution or in his Majesty's behalf, but the same may be returnable on any day in the sitting of the Court and the proceedings in all Criminal Cases shall be had according to the Laws and Statutes of Great Britain and this Province, anything herein contained to the Contrary, notwithstanding.
XVI. And be it further Enacted by the Authority aforesaid, That when any Writ or Process shall Issue to take the Body of any Person or Persons to answer unto any Plaintiff in any Civil Action in any Inferior Court of Pleas and Quarter Sessions, the Sheriff shall return therewith a Bond with two sufficient Securities for double the sum for which the Person shall be held in arrest (Executors, Administrators and Persons sued on Penal Statutes Excepted) to the Clerk on or before the first Day of every Court and if the Sheriff shall not return bail or the bail so returned shall be found insufficient, upon exception taken thereto, then in such Case the Sheriff shall be taken and stand Bail for the Defendant and the Plaintiff may proceed in his suit to Judgment according to the Rules hereafter mentioned, and on judgment or Recovery may take out Execution against the Defendant or Sheriff or both; any Law, Usage or Custom to the Contrary, notwithstanding.
Provided always, That if the Defendant puts in Bail before the time to
XVII. And be it further Enacted by the Authority aforesaid, That where any Judgment or Decree shall be obtained in any Inferior Court of Pleas and Quarter Sessions for any Debt, Damages, Portion or Legacy or Proportion of any Intestate's Estate and the person against whom such Decree shall be obtained shall remove him or herself and Effects or shall reside out of the limits of the Jurisdiction of such Court, it shall be Lawfull for the Clerk of the Court where Judgment was given or Decree made, at the request of the party for whom the same was rendered, to issue a Writ of fieri facias, capias ad satisfaciendum, or other Process, under the Test herein before prescribed and to direct the same to the Sheriff, or other Officer of any County in this Province, where the Defendant, or Debtor, or his Goods shall be found, which said Sheriff or other Officer to whom the same shall be directed is hereby Impowered and required to serve and execute the same and shall make return therof to the Court where the Judgment or Decree was given in the same manner as if such Process had Issued from the Superior Court of Pleas and Grand Sessions. And for the better ascertaining what process may be issued where the Sheriff shall return that the Defendant is not to be found in his Bailiwick. It is hereby Enacted, that where any Sheriff shall make such Return the Plaintiff or Plaintiffs in any Civil Action may sue an Attachment against the Estate of such Defendant, returnable as is hereinbefore directed for the return of Original, or other subsequent Process thereupon, to enforce an appearance, or an alias or pluries capias untill such Defendant be arrested, at the Election of the Plaintiff or Plaintiffs, and if the Sheriff shall return such Attachment executed the Plaintiff shall file his Declaration according to the Rules of the Court and be Entituled to a Judgment.
XVIII. And be it further Enacted by the Authority aforesaid, That the same Rules, Methods and Proceedings shall be had, kept and observed by the said Inferior Court of Pleas and Quarter Sessions and Officers in the granting, Issuing, executing, returning and awarding Judgment on Judicial Attachments and the like remedy, Recovery and Relief against Sheriffs and Bail as in like Cases is provided by Law in Suits Depending in the Superior Court of Pleas and Quarter Sessions. And for the regular Prosecution and Determination of Suits, Entering up Judgments and Preservation of the Records.
XIX. Be it therefore Enacted by the Authority aforesaid, That the following Rules and Methods shall be observed to-wit:
That the Plaintiff in every Suit shall file his Declaration on the first Day of the Court or first calling of the Cause in Court and at the same time serve the Defendant or his Attorney with a Copy thereof if required.
That if the Plaintiff fail to file his Declaration or appear and prosecute his Suit the Defendant may enter a non pros.
That the Defendant shall enter his appearance and file his plea in writing, whether General or Special, the first Court, and if he fails so to do the Plaintiff shall have Judgment which in Actions of Debt shall be final except where Damages are to be suggested on the Roll, in which Case and in all others where the Plaintiff shall recover in Damages a Writ of Enquiry shall be Executed the next Court.
That the Defendant may plead as many several matters as he shall think
That all Issues whether General or Special shall be heard and Tried the next succeeding Court unless sufficient Cause is shewn to such Court why such Causes shall be continued.
That all Causes at Issue ready for Trial be first heard and Tried.
That every motion in arrest of Judgment shall be argued the last Day of the same Court the Issue is Tried, the Defendant's Attorney first serving the Plaintiff's Attorney with a Copy of the Reasons in arrest of Judgment, unless upon sufficient reasons shewn and approved of by the Court further Time shall be allowed.
That where any special Verdict shall be found or Demurrer to Evidence at the Motion of either Party, time shall be allowed to the next succeeding Court for Hearing.
That in every Cause unless brought by Petition if the Plaintiff recovers, or is nonsuited or where his suit shall be Dismissed or Judgment passed for the Defendant, the Court shall allow in the Bill of Costs fifteen Shillings Proclamation money for an Attorney's Fee if the Party employed one.
That the Clerk of every Inferior Court of Pleas and Quarter Sessions when any Cause is finally Determined shall enter all Pleadings and other Matters retlating thereto in a Book kept for that purpose that an entire and perfect Record may be made up.
XX. And for Prevention of Delay and vexation by Dilatory Pleas it is hereby further Enacted, that no Plea in abatement shall be received in any Action or Suit unless the Truth thereof be sufficiently shewn to the Court by affidavit or otherwise and in all Actions where the Declaration shall plainly set forth the sufficient matter of substance for the Court to proceed upon the Merits of the Cause the Suit shall not abate for want of Form and that where any plea in Abatement shall be pleaded in any Action and upon Argument thereof the same shall be adjudged Insufficient, the Plaintiff or Plaintiffs in such Actions shall recover against the Defendant or Defendants full Costs to the time of over-ruling such plea including the Costs of that Court a Lawyer's Fee only Excepted.
XXI. And be it further Enacted by the Authority aforesaid, That for the more speedy and easy recovery of small debts it shall be Lawfull for the Justices of any Inferior Court of Pleas and Quarter Sessions to hear and finally end and determine all Suits brought for any Debt or Demand due by Judgment, Obligation, Account or otherwise for any Sum or Sums of Money above the value of Forty Shillings Proclamation Money and of less value than Five Pounds like Money, by Petition without the Solemnity of a Jury, and the said Justices are hereby authorized and required and shall have full power and authority so to do, and to award Execution thereupon, and where the Demand shall be of less value than the last mentioned Sum the Plaintiff shall proceed by Petition in the manner by this Act directed and if any Plaintiffs shall Demand a greater Sum on purpose to evade this Act he shall be non-suit and pay Costs and the method of proceeding shall be in a summary way to-wit: The Petition shall express whether the Debt arises by Judgment, Obligation, Account, or otherwise, and if by account the same shall be filed together with the Petitions, upon filing such Petition in the Clerk's Office a summons of course shall be Issued under the Hand of the Clerk returnable to the next Court, a Copy of which together with a Copy of the Petition and Copy of the Account (where the Demand is upon an account) shall be delivered to the Defendant or left at his usual place of abode ten Days at least before the next succeeding Court and the
Provided nevertheless, That the Sheriff upon serving any such Petition shall and may and he is hereby Impowered and required (if Directed by the Petitioner) by Indorsement on his Petition to take Bail as is usual on Executing a Writ and for taking such Bail and returning a Bail Bond shall be allowed One Shilling and Eight Pence to be Taxed in the Bill of Costs, and upon Judgment being recovered against the Defendant in any such Suit the Court shall and may, and are hereby required to award Execution against the Defendant and such Bail jointly unless the Principal shall surrender himself to Gaol or be delivered up by the Bail before Execution being so Granted; any Law, Usage or Custom to the contrary, notwithstanding.
XXII. And be it further Enacted, that the Clerk of every Inferior Court shall have, take and receive for the whole Fees chargeable for each Petition and Summons and all the proceedings therein, including a copy of the Judgment, taxing Costs and Entering an Attorney (Except Subpoenas for witnesses, Orders for Continuance and issuing execution where any of the said Matters happen) seven shillings and six pence and no more, and the Sheriff shall, and may take and receive Two Shillings and eight pence for serving a Copy of such Petition and Summons, besides the Fee above mentioned for the Bail Bond.
XXIII. And be it further Enacted by the Authority aforesaid, That every Clerk, Sheriff and other Officer of the said Inferior Court of Pleas and Quarter Sessions may take and receive the Fees herein before mentioned and also for every other service by them respectively to be done shall and may take and receive such Fees and Perquisites as they could or might have done for performing the like services by virtue of one Act of Assembly intituled, An Act for regulating the several Officers Fees within this Province and ascertaining the method of paying the same. And if any Clerk,
XXIV. Be it further Enacted by the Authority aforesaid, That when any Person or Persons, either Plaintiff or Defendant, shall be dissatisfied with the Judgment, Sentence or Decree of any Inferior Court he may pray an appeal from the Judgment, Sentence or Decree of such Court to the Superior Court of Pleas and Grand Sessions of the District wherein such Inferior Court of Pleas and Quarter Sessions is held. But before obtaining the same shall enter into Bond with two sufficient Securities for prosecuting the same and performing the Judgment, Sentence or Decree that the Superior Court shall enter or make thereon in case such Appellant shall be cast. And because it may happen that in Issuing process, carrying on the proceedings and rendering Judgments in the said Superior Courts of Pleas and Quarter Sessions there may be Error to reverse Judgments, Be it Enacted, that when any Defendant is desirous to prosecute a Writ of Error he shall move the Inferior Court of Pleas and Quarter Sessions where such suit is Depending to allow a Writ of Error, he first entering into Bond as aforementioned, and the Court is hereby Impowered and required to allow thereof as if such Writ of Error was then and there produced. And for carrying on and prosecuting such Appeals and Writs of Error, Be it Enacted by the Authority aforesaid, That the following Rules and Methods of Practice shall be observed, to-wit: That when any person, either Defendant or Plaintiff, conceives he is injured by the Judgment, Sentence or Decree of any Inferior Court and shall have appealed to the Superior Court in manner above Directed, a Transcript of the proceedings of the Inferior Court shall be filed with the Clerk of such Superior Court fifteen Days before the sitting of the Court and if the Trial in the Inferior Court was of an Issue to the County, a Trial Denovo shall be had and if on a Hearing on a Petition for a Filial Portion, or Legacy, or Distribution of an Intestate's Estate, or other Matter thereto relating a Re-hearing at the said Court without Notice given by either party and if such Transcript of the proceedings is not filed within the Time aforesaid with the Clerk of the Superior Court, or if the Appellant shall fail to appear and prosecute his Appeal then the Judgment, Sentence, or Decree of the Inferior Court shall be affirmed and the Appellant shall be adjudged to pay double Costs. Provided that there shall be Thirty days between the Day of Trial or hearing in the Inferior Court and the next succeeding Superior Court. But when it so happens that there are not Thirty Days between such Trial or Hearing and the Superior Court, such appeal shall be continued, and a Transcript of the proceedings transmitted to the Superior Court next after, and where any Defendant will prosecute a Writ of Error he may move the Inferior Court where the Trial is had and enter into Bond with Security as before mentioned, whereupon a Transcript of the proceedings shall be filed with the Clerk of the Superior Court fifteen Days before the Court and the party prosecuting such Writ of Error shall
XXV. And be it further Enacted by the Authority aforesaid, That in every Inferior Court within this Province when an Appeal shall be granted, or Writ of Error allowed, the Clerk of such Court shall immediately make up a full and perfect Record of all the proceedings in such Cause and shall within Ten Days after the adjournment of the Court give an attested Copy of such Record with a Taxation of all Costs accrued to the Person appealing or to whom the Writ of Error is allowed and every Clerk neglecting to do the same shall forfeit and pay to the Person entituled to such attested Copy the sum of Five Pounds Proclamation Money to be recovered by action of Debt, Plaint or Information in any Court of Record and the said Clerk shall also be further liable to an Action on the Case for all such Damages as such Person shall sustain for want thereof.
XXVI. And be it further Enacted by the Authority aforesaid, That if any action or other Process shall be commenced and prosecuted against the Sheriff of any County in this Province then instead of other Process which might be legally taken in like case against any other person, the Clerk of any Inferior Court of pleas and Quarter Sessions shall upon request issue a summons directed to the Coroner of the County reciting the matter or cause charged against such Sheriff and summoning him to appear and answer the same at the next Inferior Court of Pleas and Quarter Sessions to be held for the said County and if such Sheriff shall not appear according to such Summons it shall be Lawfull for the Court to award attachment against the Estate of such Sheriff so failing to appear and thereupon the like Proceedings shall be had as in Cases of other Attachments.
XXVII. And for the better Discovery of the Truth in any Matters whatsoever before the Inferior Courts, Be it Enacted by the Authority aforesaid, That the Clerk of every such Court may and he is hereby authorized and required upon the Request of either Party to issue one or mor Summons or Summonses for any Person or Persons to attend as a Witness or Witnesses, in any Cause Depending before them Directed to the Sheriff or other officer of the County, where such Witness or Witnesses do live or usually reside who is hereby Impowered and required to serve such Summons or Summonses and the Witness or Witnesses thereby Summoned shall appear according to the Tenor thereof and every Person or Persons so summoned and attending shall have the same allowance and be entitled to the same Priviledges and Exemptions as Witnesses summoned to any Superior Court have or may claim, and on failure to attend according to such summons shall be liable to the same Penalties, fines, forfeitures and Actions as Witnesses summoned to attend the aforesaid Superior Courts are liable and subject to in the like cases and shall and may be proceeded against accordingly; any Law, Usage or Custom to the contrary, notwithstanding. And where any Witness is aged, Infirm or otherwise incapable of attending the Court and resides out of the County, such Court upon motion of either party and the truth thereof appearing may Grant a Dedimus to take the Examination of such Witness or Witnesses in the same manner and with such Notice as such Commissions may be issued, Executed and returned in Proceedings in the Superior Courts.
XXVIII. And be it further Enacted by the Authority aforesaid, That every Person summoned to appear as a Witness in any of the said Inferior Courts in manner as herein before directed shall appear according to such Summons and continue to attend from Day to Day and from Court to Court untill Discharged by the Court or the party at whose instance he was summoned, and in default thereof shall be subject to the pains and penalties herein before mentioned; any Law or usage to the contrary notwithstanding.
XXIX. And be it further Enacted by the Authority aforesaid, That all Causes, Actions, Suits, Writs, Petitions, Summonses, Plaints, Process, Recognizances, Indictments and Presentments whatsoever, that are or shall be depending in either of the County Courts in this Province or such as shall be returnable to, or had, or shall have Day or Days in any of the said Courts or other Matters or things in them depending not fully Determined, after the passing of this Act shall be Transposed and carried off the Dockets in each of the County Courts into the Dockets of the said Inferior Courts of Pleas and Quarter Sessions in the same order in which they shall then stand in the Dockets of the said County Courts respectively, and shall be proceeded on by the said Inferior Courts according to the Method by this Act Directed as if the same had been originally commenced in any of the said Inferior Courts.
XXX. And be it further Enacted by the Authority aforesaid, That all Writs and other Process and all Suits and proceedings whatsoever Issued, Granted or Prosecuted in any of the County Courts wherein Judgment hath been entered or decree made shall and may be taken cognizance of by the Inferior Courts of the respective Counties and such Courts may respectively award Execution or other necessary proceedings on such Judgment or Decree in the same manner as if such Suit had been Originally commenced in such Inferior Court; any Law, Usage or Custom to the contrary, notwithstanding.
XXXI. And be it Enacted by the Authority aforesaid, That all Suits heretofore brought by Petition and Summons in any County Court and not yet Determined, where the Sum Petitioned for is more than Twenty-five Shillings and less than Forty Shillings, the Justices of the Court where such Petitions have respectively been brought and are now Depending may and are hereby required to hear and Determine the same in a Summary way without a Jury and to award Execution thereon; anything herein to the contrary, notwithstanding.
I. Whereas, the greatest part of the Estates in this Province belonging to Orphans are of so inconsiderable value that an application to the Court of Chancery in many instances will occasion an expence which the profits of them are not Sufficient to defray: And it having been found by Experience that the Court of each respective County exercising the power of regulating the Education of Orphans, and the Management of their Estates, hath proved of Singular Service to them;
II. Be it therefore Enacted by the Governor, Council and Assembly, and by the Authority of the same, That where any person hath, or shall have, any Child or Children under the Age of Twenty-one Years and not married, it shall and may be lawful to and for the father of such Child, or Children,
Provided neverthelss, that nothing in this Act contained shall be construed to hinder any of the people, commonly called Quakers, to make such Disposition, or to hinder the Superior or Inferior Courts from Committing the Guardianship and Custody of their Children to the people of that Persuasion, and that every Person and Persons, to whom such Tuition and Custody hath been, or shall be, so disposed or devised as aforesaid, shall and may take into his and their possession, for the use of such Child and Children, the profits of all Lands, Tenements and Hereditaments, and also, the slaves, Goods, Chattels, and Personal Estate of such Child or Children, and may bring such Action or Actions in relation thereunto as by Law a Guardian in common Soccage might do.
Provided always, that nothing herein before Contained shall extend to discharge any Apprentice from his Apprenticeship, and the Superior Court of the District, or the Inferior Court of Pleas and Quarter Sessions of the County, wherein such Guardian shall reside respectively, upon Complaint to them made of such Guardian, abusing the trust reposed in him, by misusing the Child or Children so committed to his Tuition as aforesaid, in being or intending to marry such Child or Children in disparagement, neglecting the Care of their Education suitable to their Estate, or wasting, Converting to his own use, or otherwise mismanaging such Estate, to make and Establish from time to time such Rules and Orders for placing such Child or Children under the care and Tuition of any other Person or Persons securing the Estate, and for the better Education and Usage of such Child or Children, as they in their discretion shall judge Meet and Necessary.
III. And be it further Enacted by the Authority aforesaid, That the Superior Courts and Inferior Courts of Pleas and Quarter Sessions of this Province, within their respective Jurisdictions, have and shall have full power and authority, from time to time to take Cognizance of all matters concerning Orphans and their Estates, and to appoint Guardians in such Cases where to them it shall appear necessary, and shall take good Security of all Guardians by them to be appointed for the Estates of the Orphans by them committed, and if any Court shall commit an Orphans Estate to the Charge or Guardianship of any Person or persons without taking Good and Sufficient Security for the same, the Justice or Justices appointing such Guardian shall be liable for all loss and Damages sustained by the Orphan for the want of such Security being taken, to be recovered by Action at the
Provided always, That where the Securities were good at the time of their being taken or Accepted, but afterwards became insolvent in such case the Justice or Justices shall not be liable.
IV. And be it further Enacted, That the Bond to be given by any person or Persons appointed Guardian as aforesaid, shall be made payable to the Justice or Justices present in Court, and granting such Guardianship, the Survivors or Survivor of them, their Executors or Administrators in Trust for the benefit of the Child or Children Committed to the Tuition and Care of such Guardian which Bond such Court shall cause to be acknowledged before them and recorded and that in the name of the Justice or Justices to whom the said Bond was made Payable the Survivors or Survivor of them, their Executors or Administrators, any Person or Persons injured may and shall at his, her or their costs and Charges Commence and prosecute a Suit against such Guardian and his Securities, Executors or Administrators and shall and may recover all Damages which he, she or they have sustained by reason of the Breach of the Condition thereof.
Provided, always, that if any verdict or Judgment shall Pass for such Guardian or his Securities the Person at whose instance such Suit shall be commenced or prosecuted shall pay Costs.
V. And be it further Enacted by the Authority aforesaid, That when a Guardian shall be appointed to an Orphan by any Superior or Inferior Court Such Guardian shall at the next Court after his appointment exhibit an account upon oath of all the Estate of such Orphan which he or she shall have received into his or her hands or possession. And every Guardian heretofore or hereafter to be by any such Court appointed, shall annually exhibit his account and state of the profits and disbursements of the Estate of such Orphan upon Oath, and such Accounts so to be exhibited shall be entered by the Clerk in particular Books to be provided and kept for that purpose only, and when the said Courts shall know, or be informed that any Guardian or Guardians by them respectively appointed, do waste or Convert the money or Estate of any Orphan, to his or their own use, or do in any Manner Mismanage the same, is about or intended to marry him or her in disparagement, or neglects to educate or maintain any Orphan according to his or her Degree and Circumstances, or where such Guardian or his securities are likely to become insolvent, such Court shall have Power from time to time to make and establish such rules and orders for the better ordering, Managing and securing such Estate, and for the better Education and maintaining such Orphans or to appoint another Guardian as they shall think fit and convenient.
VI. And be it further Enacted, That every Guardian, Executors or Administrators, as soon as conveniently the same may be done, shall by Order of the Superior or Inferior Court of Pleas and Quarter Sessions, cause the Sheriff to sell and dispose of all the Goods and Chattels of his or her ward as are or may be liable to perish, consume, or be the worse by using or keeping (Except in the instances herein after mentioned) for the most that can be got for the same by public sale in reasonable Lots, and shall for enhancing the price thereof give six months credit upon goods secured, given for which service the Sheriff shall be allowed by the Court, so as such allowance does not exceed two and a half per Cent., and such Guardian after the time of such payment is passed shall take and pursue all lawful ways and
VII. And be it further Enacted, That where any Orphan shall have Lands, and a sufficient number of slaves to cultivate and improve the same, such Slaves, unless otherwise ordered by the Superior or Inferior Court, shall be employed on the Lands and Plantations of such Orphan, and all Horses, Cattle, Sheep and Hogs shall be kept up on such Lands and Plantations until such Orphan comes of age and he or she shall have the benefit of the increase, and shall sustain the loss if any shall happen.
Provided nevertheless, That if any such stock grow too numerous, or if it will be to the advantage of such Orphan, his or her Guardian shall and may sell by order of the Superior or Inferior Court, such part of such stock as such Court shall think fit and all plate shall be preserved and delivered to such Orphan when at age, in kind, according to weight and quantity.
VIII. And be it further Enacted, That no Guardian shall let, or farm out any Lands belonging to any Orphan for a longer term than the Orphan be of age, or in other manner than by lease in Writing, and that special Care be had that the Tenant shall improve the Plantation, and that he or she keep the Houses, Orchards and Fences thereon, or that shall be Erected on the same, in good and sufficient repair, and lease the same so at the Expiration of such Lease, and that provision be made in such Lease for preventing all kinds or waste and employing any timber to any other use than the immediate use of the Plantation.
IX. And be it further Enacted, That if the Guardian of any Orphan shall suffer his or her Land to lapse or to become forfeited for non-payment of Quit Rents, such Guardian shall be liable to answer full Value of the Lands so forfeited unto such orphan at his or her coming of Age. And if it shall so happen that any Orphan shall not have slaves to cultivate his or her Lands and the Guardian of such Orphan cannot rent the same for sufficient to pay and discharge the Quit Rents thereof, and there shall not be Personal Estate sufficient for that purpose, it shall and may be lawful for such Guardian, with the consent and approbation of the Superior or Inferior Court, annually to sell and dispose of or use so much of the Lightwood, to box so many pine Trees, or to sell so much of the Timber of the same, as shall raise sufficient to pay and Satisfy the Quit Rents thereof, and no more.
X. And be it further Enacted by the Authority aforesaid, That the Justices of every Inferior Court of Pleas and Quarter Sessions in this Province respectively, shall, on the first day of the Court that shall be held next after the first day of January in every year, hold an Orphan's Court for the
Provided always, that nothing herein before contained shall be construed to restrain the power of the Inferior Courts of Pleas and Quarter Sessions in enquiring as often as they shall think proper into the Abuses and mismanagement of Guardians, but that it shall be lawful for them to execute such power at any time or times when to them it shall appear necessary, anything in this act Contained to the Contrary notwithstanding.
XI. And be it further Enacted, That the Churchwardens of every Parish in this Province, shall annually, at the Orphans' Court to be holden for their Counties, respectively, present to the Justices thereof, upon Oath in writing, the names of all Orphan children within their Parish, that they shall know have not Guardians appointed them, and are not Bound out to some trade or Employment, and all abuses, mismanagements and neglects of such Guardians as live within their Parish.
XII. And be it further Enacted, That the Justices of every Inferior Court, and the Church Wardens of every Parish, respectively, who shall fail or neglect to do their duty herein, shall forfeit and pay the sum of ten Pounds, Proclamation money, each, one half to our Sovereign Lord the King, his Heirs and Successors, to and for the use of the County wherein such neglect or failure shall be, and the other half to the informer, to be recovered with Costs in any Court of Record.
XIII. And be it further Enacted by the Authority aforesaid. That it shall and may be lawful for every Guardian to charge in his Account all reasonable disbursements and expences, and if upon rendering such Account it shall appear to the Court that such Guardian hath really and bona fide disbursed more in one Year than the profits of the Orphan's Estate do amount unto for the education and maintenance of the Orphan, such Guardian shall be allowed and paid for the same out of the Profits of such Orphan's Estate in any other Year.
Provided always, That such disbursements be in the Opinion of such Court suitable to the degree and circumstances of the Estate of such Orphan, and that where such Estate shall be of so small value that no person will educate and maintain him or her for the profit thereof, such Orphan shall by direction of the Court be Bound apprentice, every male to some Tradesman, Merchant, Mariner or other person approved by the Court, until he shall attain to the Age of Twenty-one Years, and every Female to some Suitable Employment 'till her age of eighteen years, and also such Court may in like manner bind apprentice all free base born children, and every such Female Child being a Mulatto or Mustee, until she shall attain the
XIV. And be it urther Enacted, That the binding of such apprentices by Order of Court as aforesaid shall be by Indenture made in the name of the Presiding Acting Justice of the Court and his Successors, of the one part, and of the Master or Mistress to whom he or she shall be bound, of the other, which Indenture shall be Acknowledged or proved before such Court and recorded, and a counterpart thereof shall remain and be kept in the Clerk's Office for the benefit of such apprentice and that any person or persons injured, may and shall at his or her costs and charges prosecute a Suit thereon in the name of such Justice or his Successors and recover all damages which he or she may have sustained by reason of the Breach of the Covenants therein contained, and if any verdict or Judgment shall pass for such Master or Mistress, he or she shall recover Costs.
XV. And be it further Enacted by the Authority aforesaid, That where any Person who now is, or hereafter shall be Security for the Estate of any Orphan, shall conceive himself in danger by reason thereof and petition the Court where such security was entered into for relief, it shall be lawful for such Court upon petition to them exhibited forthwith to order summons to Issue against the party or parties with and for whom the petitioner stands bound, returnable to the next Court, and thereupon compel such party or parties to give Sufficient other or Counter Securities, to be approved by the said Court, or to deliver up the said Estate to the said Petitioner, or such other Person as the Court shall direct, or they may and are hereby empowered to make such other Order or rule therein for relief of the Petitioner, and better securing such Orphan's Estate as to them shall appear just and Equitable.
Provided always, That such Court shall take good and Sufficient Security of the Person or Persons to whom such Estate shall be so committed in like manner and under the like penalty as is by this Act required to be taken of Guardians appointed by the Court, and every such Person shall also Exhibit his account and be subject to the rules and Orders of the Court in the same manner to all intents and purposes as is herein before Required of Guardians, or they are made subject unto.
XVI. And be it further Enacted by the Authority aforesaid, That all Legacies, Filial Portions, Distributive Shares of Intestate's Estates, Sum or Sums of Money, or other Estate, due or owing from any person appointed Guardian to any Orphan, or from any Executors or Administrators, shall and may be recovered by petition to the Superior Courts of the District, or any Inferior Court of Pleas and Quarter Sessions, and that in all suits by petition as aforesaid, and in the said Courts respectively, the following Rules and Methods shall be observed, to-wit:
The petitioner shall file his Petition in Court upon Exhibiting the same, and thereupon a Summons shall be Issued by the Clerk of Course, and that
That upon an Answer, Plea or Demurrer being filed as aforesaid, the Petitioner may move the Court to have the same set for hearing and immediately argued, and thereupon the Court. shall proceed to hear and Determine the same according as the matter in Equity and Law shall appear to them without regard to form, or for want or form, in the Petition Process or Course of Proceedings.
That upon the Defendants being served with a summons and copy of the Petition Ten Days before the Court to which such Summons is returnable and oath made thereof, if he shall fail to appear and plead, answer or Demur as aforesaid, the Petitioners Petition shall be taken pro confesso and the matter thereof Decreed accordingly with Costs unless on special reasons shewn to and approved by the Court, time shall be allowed such Defendant to file such Plea, Answer or Demurrer.
That upon the Petitioner dismissing his Petition or the same being dismissed for want of prosecution he shall pay costs.
And if any Defendant shall appear on such Summons and shall obstinately refuse to answer the Petition of the Petitioner the same shall be taken pro Confesso and the matter decreed as aforesaid.
Every Defendant shall be at liberty to swear his answer or plea before any Justice. That when a plea or demurrer shall be overruled the Defendant shall file his Answer the same Court.
That when the Petitioner shall be minded to disprove the answer of the Defendant and Support his Claim he may reply.
Commissions to examine Witnesses, may be awarded by the Court after Replication filed, the party taking out such Commission giving the adverse Party ten days notice of the time and place of Executing the same.
And that upon a Decree being made on any such petition it shall and may be Lawful for the Court who shall make the same to grant Execution against the Defendant's body, Goods and Chattels, Lands and Tenements for satisfying such Decree and Costs; any Law, Usage or Custom to the Contrary, notwithstanding.
XVII. And be it further Enacted by the Authority aforesaid, That when any person shall conceive himself injured or Aggrieved by the order or Sentence of any Inferior Court in Appointing a Guardian to any Orphan, or in removing any Orphan from the care and Tuition of any person who has been appointed such, or on refusing to make such Appointment or removal as aforesaid, he may appeal from such order or Sentence to the Court of Chancery of this Province, or to the Superior Court of the district at his Option, and the party praying such appeal shall file a Copy of the Proceedings of the Inferior Court therein, with the Clerk of the Chancery or Clerk of the Superior Court, as the case may be, fifteen Days before the sitting of such Court and thereupon it shall and may be Lawful for the Court to which such appeal is made to proceed to rehear the matter and either affirm or reverse such Order or Sentence, and thereupon to award Execution for all such Costs and Charges as shall be occasioned by such Appeal.
Provided nevertheless, That the party praying such appeal before the same shall be granted by the Inferior Court, shall enter into Bond with Sufficient Security for prosecuting such Appeal with Effect and the Payment of all such Costs and Charges as shall be awarded against his in case he shall be cast in his said appeal.
Provided also, that nothing in this Act contained shall be Construed to Restrain or abridge the Power of the said Court of Chancery in any matter or thing relating to Orphans or their Estates, but the said Court shall and may hold, use, exercise and enjoy the same Jurisdictions, Powers and Authorities therein, in as full and ample manner to all intents and Purposes as if this Act had never been made; anything herein Contained to the Contrary, notwithstanding.
I. Whereas, a just Decision of suits and Controversies in the several Courts of Justice in this Province greatly depend on the integrity and Capacity of Jury Men;
II. Be it Enacted by the Governor, Council and Assembly, and by the Authority of the same, That no Person shall be a Juryman in either of the Superior Courts of Pleas and Grand Sessions within this Province who shall not be nominated, summoned and qualified as is hereinafter directed, That is to say the Justices of the Inferior Courts within the District of each respective Superior Court in this Province, shall, and they are hereby directed before every Superior Court to nominate twenty-four Freeholders to serve as Grand Jurymen and Twenty-four Freeholders to serve as petit Jurors at such Superior Court, except the Justices of the said Inferior Courts within the District of Salisbury, who are hereby required to nominate Twenty-four Freeholders to serve as Grand Jurymen and only Twelve Freeholders to serve as Petit Jurors at the Superior Court of the said District.
Provided always, That no Inferior Court shall knowingly Nominate any Person to serve as a Grand or Petit Juror at two Courts successively, nor any person to serve on the petit Jury who shall have an action or suit to be tried at the Superior Court at the term for which he shall be so nominated.
III. And be it further Enacted, That the number of Freeholders to be nominated for each County to serve as Jurors as aforesaid, shall be proportioned as follows, to-wit:
New Hanover County Sixteen. Bladen County Ten. Onslow County Eight. Duplin County Eight and Cumberland County Six, for the District of Wilmington.
Craven County Eighteen, Carteret County four, Beaufort County Twelve, Hyde County four, Dobbs County Ten, for the District of New Bern.
Northampton County Ten, Halifax County Twelve, Granville County Eight, Orange County Six, Edgecombe County Eight, Johnston County four, for the District of Halifax.
Chowan County Ten, Perquimans County Six, Beaufort County Eight, Currituck County four, Tyrrell County six, Bertie County Eight, and Hertford County Six, for the District of Edenton.
Rowan County Twenty-two and Anson County fourteen, for the District of Salisbury.
A list of which Jurors so nominated, shall be delivered by the Clerk of each Inferior Court of Pleas and Quarter Sessions to the Sheriff who shall and is hereby required to summon the persons so nominated to serve as jurymen at the Superior Court. And if any Juryman so summoned shall fail to appear he shall be fined three Pounds, Proclamation Money, unless he can
Provided always, That if the said Inferior Court of Pleas and Quarter Sessions shall fail, or neglect to nominate Freeholders to serve as Grand and Petit Jurors as aforesaid, all the persons so nominated shall fail to attend, it shall and may be Lawful for such Superior Court to order and direct the Sheriff to summon other Freeholderh of the by-standers to serve as Jurymen for either grand or petty juries, and the persons so summoned shall be deemed and held to be Lawful Jurymen. Provided, that such by-standers as shall be summoned to serve on the Petty Jury shall and may every Day be discharged, and the succeeding Day, and so from day to day during the Continuance of the Court, the Sheriff shall Summon of the by-standers so many as shall be necessary, and every person so summoned of the bystanders who shall not appear and serve as a juryman, shall be fined the Sum of three Pounds unless he can show sufficient Cause, to be admitted by the Court, to be applied as before directed; And that the Fines aforesaid may be applied according to the directions of this Act.
IV. Be it Enacted by the Authority aforesaid, That the Fines herein imposed shall be levied by the Sheriffs of each respective County wherein each Person shall reside, who shall be summoned as a Juryman as is herein directed, and shall fail to appear and serve as such, and such Sheriff shall be accountable for the same to the Inferior Court of his County.
V. And be it further Enacted by the Authority aforesaid, That the Sheriff of each respective County shall and he is hereby required to summon the Freeholders in the list to be delivered to him by the Clerk at least ten days before the sitting of the Superior Court, at which such Freeholders are to attend as Jurors, which he may do Personally or by leaving a note or summons in writing at the Dwelling House of such Freeholders so to be nominated as aforesaid.
VI. And be it further Enacted by the Authority aforesaid, That the Clerk of each Superior Court shall every day during the continuance of such Court write the names of all petit jurors appearing, on scrolls or pieces of paper, which shall be put into a box and on every Issue in every Suit, where it is not otherwise agreed by consent, a child, under ten years old, in open Court, shall draw out of the said Box twelve of the said Scrolls or Pieces of paper; and the persons whose names shall be on the said scrolls or pieces of paper drawn as aforesaid, shall be the Jurors to try such Issue. Provided, that they all shall appear, and in case of Defaulters other Scrolls shall be drawn, till a sufficient number shall appear to make a compleat Jury.
Provided also, that if any of the Jurors whose Names shall be drawn as is herein before directed, shall be lawfully challenged, other Scrolls shall be drawn in manner aforesaid as occasion may require, till a compleat number of Jurors shall appear.
VII. And whereas, the attending the Superior Courts, will be very expensive to Jurors, for remedy whereof,
VIII. Be it Enacted by the Authority aforesaid, That each and every Juror who shall attend either of the Superior Courts, to which he shall be nominated as aforesaid, and summoned in virtue of this Act, upon producing Certificate from the Clerk of such Superior Court of the time of his attendance to the Inferior Court of the County where he resides, shall have and receive three shillings, Proclamation Money, for every day he shall travel and attend
IX. And be it further Enacted by the Authority aforesaid, That the Sheriff of each respective County in this Province shall, five days at least before the sitting of each respective Inferior Court, to be held after the passing of this Act, summon twenty-four freeholders to serve on the Grand Jury and twelve Freeholders to serve on the petty Jury, to attend at such Courts respectively; which said Jurors shall appear and give their attendance accordingly till discharged by the Court, and that there may not be a Default of Jurors it shall and may be Lawful, during the sitting of the Inferior Court, for the Sheriff by Order of the said Court, to summon of the bystanders other Jurors to serve on the Petty Jury, from day to day, and on any day of the said Court the Justices may discharge those who have served the preceding day.
And to enforce the attendance of Jurymen at the said Inferior Court,
X. Be it Enacted by the Authority aforesaid, That every person who shall hereafter be summoned in virtue of this Act to appear, either as a Grand or Petit Juryman, at any Inferior Court, and shall fail to appear or give his attendance 'till discharged by the order of the Court, such person so failing to appear, or give his attendance, 'till discharged, shall be fined forty shillings, by the Justices of the Inferior Court, to be applied towards defraying the Charges of the County and lessening the County Tax, unless he shall shew sufficient Cause to the next succeeding Court for such failure.
XI. And be it further Enacted by the Authority aforesaid, That this Act shall continue and be in force from and after the passing thereof, for and during the space of one Year, and from thence to the End of the next Session of Assembly, and no Longer.
I. Whereas, making provision for the Clergy, providing for the Poor and the due management of Parochial affairs require that a Vestry be established in each Parish in this Province under proper regulations.
II. Be it therefore Enacted by the Governor, Council & Assembly, and by the Authority of the same, That the Freeholders of each Parish shall and are hereby directed to meet on the first Monday in September next after the passing of this Act, at the Court house or place where the County Court is commonly held at, or the usual place of electing Vestrymen, then and there to Choose and elect twelve Freeholders to serve as Vestrymen, which Vestrymen so chosen shall, by the Sehriff or his Deputy, be summoned to meet at the Church in each respective Parish, and where there is no Church, at the Court House or place where the County Court is held, within twenty Days next after such Choice, to Qualify themselves according to the Directions of this Act; and if the Sheriff shall neglect or refuse to summon or cause to be summoned the Vestry as aforesaid he shall forfeit and pay the sum of Twenty Shillings, Proclamation Money, for each and every Vestryman not summoned as aforesaid, to be levied and applied as herein after directed; And the said Sheriff shall be paid by the Parish the sum of two shillings, Proclamation Money, for each Vestryman he shall so summon.
III. And that the election may be made in a fair, open Manner, Be it Enacted by the Authority aforesaid, That at all elections of Vestrymen hereafter
IV. And to prevent disputes concerning who shall be understood to be a Freeholder, Be it further Enacted by the Authority aforesaid, That no person who is not in actual possession of an Estate Real for his own Life or the life of some other person, or an estate of Greater Dignity, in fifty acres of Land or a Lot in some Town, saved according to Law, in the Parish for which such election shall be made, shall be deemed a Freeholder within the meaning of this Act; and any one of the Candidates may, in Case he suspects any person going to give his vote hath not a freehold within the meaning of this act, object to such person giving his vote, and require the Sheriff to tender him an Oath or affirmation concerning his Qualification, which oath or affirmation the Sheriff is hereby empowered and directed to administer in the following words, to-wit: “You shall swear (or affirm) That you are in actual possession of a Freehold of Fifty Acres of Land in your own right, or the right of some other person, or a Lot in the town of ——, saved according to Law, in the Parish of ——, and that you have not given your vote before in this Election. So Help you God.”
V. And be it further Enacted, That no person under the age of twenty-one years shall be elected a Vestryman or give his vote for the election of Vestrymen in any Parish.
VI. And to enforce the attendance of the Freeholders at such elections, be it further Enacted by the Authority aforesaid, That every person qualified to vote for Vestrymen in their respective Parishes, the People called Quakers excepted, is hereby required to attend and give his vote at the election of Vestrymen in manner herein before directed; unless prevented by some bodily infirmity or other legal disability, under the penalty of twenty shillings, proclamation money, to be recovered by a warrant from any Justice of the Peace within the County: Provided such Penalty be sued for within ten days after the same be incurr'd.
VII. And be it further Enacted by the Authority aforesaid, That if any person shall give his vote at such election of Vestrymen who hath not been possessed in his own right of a Freehold in Fifty Acres of Land in manner hereinbefore mentioned, or Lot saved according to Law in some Town in the Parish wherein he shall give such vote, such person shall Forfeit five pounds, proclamation Money, to be recovered by action of Debt or information in any Inferior Court of Pleas and Quarter Sessions, one half to the Informer and the other half to the use of the Parish wherein such vote shall be given; And where such action shall be brought the onus probandi shall lie on the defendant.
VIII. And be it further Enacted, That the said Vestrymen so elected, having within twenty Days after being elected taken the Oaths appointed to be taken by one act of Parliament made in the first year of the Reign of his late
IX. And be it further Enacted by the Authority aforesaid, That every person chosen in manner aforesaid, who shall refuse or neglect to take the said Oaths and to repeat and subscribe the Test, and also subscribe to the Declaration aforesaid, is hereby declared to be incapable of Acting as a Vestryman, and the other persons chosen and Qualified as aforesaid, or the majority of them, at any Time after the expiration of twenty days after such election, shall elect and choose another Freeholder instead of him so refusing or neglecting. And such Person so elected, after being Qualified in manner aforesaid, shall be held to be a legal Vestryman to all intents & Purposes.
X. And be it further Enacted by the Authority aforesaid, That the Vestry of each respective Parish, or a majority of them, shall and are hereby directed within one month after being elected and Qualified as aforesaid, to elect and choose out of the said Vestry Two persons to execute the office of Church Wardens. And every Vestry shall, and are hereby required at all Times thereafter, within Forty Days after Easter Monday Yearly, to elect and Choose out of the Vestry Two persons to execute the said Office; and if the persons elected Churchwardens as aforesaid by Virtue of this Act, or either of them, shall refuse to Execute the said Office, he or they so refusing shall forfeit and pay the sum of Forty Shillings, Proclamation Money, to be recovered and applied as herein after directed, and in such case the Vestry shall proceed to choose in the room of him or them so refusing another or other Church Warden or Church Wardens out of the said Vestrymen. Provided, that no person whatsoever shall be obliged to serve as Church Warden in any Parish longer than one year.
XI. And be it further enacted by the authority aforesaid, That the Church Wardens of every Parish shall purchase, at the Expence of the same, well bound Books for keeping therein a Journal of all proceedings of the Vestry, in which shall be fairly stated accounts of all such money as they from time to time shall receive in Virtue of their Office, and all Disbursements made on Account of the Parish, and within Ninety Days after their Wardenship shall expire set up in the Court house of their County on a Court Day Copies of such accounts and Continue the same during the sitting of the Court, for Inspection of the Parishioneers; and every Church Warden who shall fail or neglect so to do shall Forfeit and pay the sum of Five Pounds, Proclamation Money, to be recovered by Action of Debt or Information in any Inferior Court of Pleas and Quarter Sessions, one half to the use of the Informer and the other half to the use of the Parish wherein such failure or neglect shall happen.
XII. And be it further Enacted by the Authority aforesaid, That the Church Wardens, or in case they refuse or Neglect, any three of the Vestry in any Parish shall have power and authority to call a Vestry upon any Occasion which they shall judge Necessary, by a Summons or Summonses under their hands directed to the Constables of the several Districts of each Parish who are hereby directed to execute the same under penalty of
XIII. And be it further Enacted by the Authority aforesaid, That the Vestries of the several Parishes shall have full power and authority, upon the death or removal out of their respective Parishes of any Church Warden or Church Wardens, before the time limited for executing the said Office is expired to elect and choose out of the Vestry, another or other Church Warden or Church Wardens in the place of the person or persons so dead or removed; and every Church Warden so elected shall serve until the Time appointed by this Act for election of Church Wardens under the penalty of Forty Shillings, Proclamation Money.
XIV. And be it further Enacted by the Authority aforesaid, That the Vestry of each respective Parish shall have full Power and Authority and are hereby directed and required; between Easter Monday and the first day of November, yearly, to Lay such a Poll Tax on the taxable persons in their Parish as they shall judge Necessary for building Churches and Chappels, paying the Minister's Salary, Purchasing a Glebe, erecting a Mansion and convenient out houses thereon, Maintaining the Poor, and Defraying other Incident Charges of their Parish; and if the Vestry of any Parish shall neglect or refuse to Lay a Sufficient Tax to satisfy the Minister and other Creditors of the Parish, in such case the Vestry so refusing or neglecting shall be liable to the Action of the Party grieved, his or her Executors or Administrators, for all Damages which he, she or they shall sustain thereby.
XV. And be it further Enacted by the Authority aforesaid, That no Vestryman hereafter shall be Capable of holding or exercising the Office of Clerk of the Vestry; but the Vestry of every respective Parish shall appoint some other person of skill and probity to officiate as such.
XVI. And for the better collecting and paying the said tax; Be it further Enacted by the Authority aforesaid, That every Sheriff in this Government shall be, and is hereby appointed Collector of all such Taxes as shall be assessed by the Vestry or Vestries within his County, and within forty days after such assessment shall enter into bond, with sufficient securities, to the Church Wardens of every Parish that he will duly collect such Taxes, and pay the same to the Vestry for the use of the Parish, and every Sheriff who shall fail or Neglect to give such Bond and Security, shall forfeit and pay the sum of twenty pounds, Proclamation Money, to be recovered with Costs, by Action of Debt or Information in any Court of Record, by the Church Wardens to whom such Bond and Security ought to have been given, to the use of the Parish, and upon such refusal or neglect of the sheriff the Vestry shall and are hereby required to Nominate and appoint some other person to collect & receive the aforesaid Tax, who shall give Bond and Security to collect and pay the same in manner aforesaid, and thereupon shall and is hereby declared to have full power and authority to collect & receive the same under the like rules & regulations as the Sheriff could or might have collected the said Taxes.
XVII. And be it further Enacted by the Authority aforesaid, That if any Sheriff who hath undertaken the collection of Parish Taxes as aforesaid
XVIII. And be it further Enacted by the Authority aforesaid, That if any Sheriff or other Parish Collector shall neglect or refuse to account for and pay the several Parish Taxes, that have been or hereafter shall be assessed on the Taxable persons of the Parish whereof he is Collector, and wherewith he shall be chargeable according to the directions of this Act, after deducting the Commissions allowed him and the several Sums chargeable to persons who have no Visable Estate in such Parish, it shall and may be Lawful for the Superior Court of the District wherein such Sheriff or Collector shall live, either before or at any time after the expiration of his said office, on Motion of the Church Wardens, to give Judgment against such Sheriff or Collector for all the money wherewith he shall or may be chargeable to such Parish with Costs, and thereupon to award execution against the Goods and Chattels, Lands and Tenements of such Sheriff or Collector; Provided, that he have ten days previous notice of such Motion.
XIX. And be it further Enacted by the Authority aforesaid, That all such Taxes shall be collected and accounted for by the Sheriff or other Collector, on or before the tenth day of June in every year, and the Sheriff or Collector shall be allowed Six Per Cent for his Trouble in Collecting and Paying the same, and is hereby declared to have full power and authority at any time, after the first day of February in every year, upon neglect or refusal of payment of the said Tax, or any part thereof, by any person Chargeable therewith, to distrain the Goods and Chattels of the person so refusing, or Neglecting, And if the owner thereof shall not pay what is due within Five Days after such Distress is made, such Sheriff or Collector shall and may sell by Auction the Goods so distrained, or so much thereof as shall be sufficient to satisfy the said Tax, the sum of two shillings and eight pence, Proclamation Money, for making such distress and Charges on the sale thereof, returning the over plus (if any) to the owner, but shall give notice of the sale by setting up an advertisement in writing at the Church Door in the Parish or at the most publick place of Worship, where there is no Church, and by publishing the same among the people immediately after Divine Service on the next Sunday after the expiration of the said five days; which sale shall not be without less than three Days nor more than Ten Days after notice so given; And shall be good & effectual in Law against all persons whatsoever; Provided always, That no Sheriff or other Officer shall at any time make or take unreasonable distress or seize the slave or slaves of any person for Parish Taxes, if other sufficient Distress shall be shown to such Sheriff or Collector by the person on whom such Distress is made, upon penalty of being liable to the action of the party grieved wherein he shall recover full costs; although the Damages recovered shall be under Forty Shillings.
XX. And be it further Enacted by the Authority aforesaid, That the Vestry
XXI. And be it further Enacted by the Authority aforesaid, That the several forfeitures and penalties by this Act inflicted, for which no method of recovery or application is herein before directed, shall and may be recovered with Costs before any Jurisdiction having cognizance thereof, one half to the use of the Informer and the other half to the use of the parish wherein such Penalty shall be incurred.
XXII. And for continuing a succession of the said Vestrys, Be it further Enacted by the Authority aforesaid, That the Sheriff of each County shall and is hereby required within one month after the election of Vestrymen, in manner herein before directed, to deliver to the Vestry or Vestrys within his County an exact amount of the number of suffrages given at such election for each Vestryman, the Seniority in office of whom shall be accounted from the Number of Votes they respectively had given them at th time of being elected. And where an equal number of votes shall have been given at the election for two or more of the Vestrymen, the Seniority of such Vestrymen shall be determined by the suffrages of the remaining Vestrymen, who shall and are hereby empowered to regulate and determine the precedency of those so chosen by an equal number of votes as aforesaid. And every Vestry shall choose a Vestryman or Vestrymen instead of any person or persons who hath ben elected and refused to act, or who shall die or remove out of the Parish, & such person or persons so chosen by the Vestry and such as from time to time shall be elected in manner herein after mentioned shall be deemed the Senior Vestryman or Vestrymen of the Parish for which he or they was or were chosen, until the election of other Vestrymen. And on Easter Monday which shall be in the year of our Lord one thousand seven hundred and sixty-two, and so on Easter Monday in every second year thereafter, the office of the four junior Vestrymen in every Parish shall become vacant, and on Easter Monday in the year aforesaid, and in every second year thereafter, the Freeholders of each Parish shall and are hereby directed to meet at the Court house or usual place of electing Vestrymen, and then and there choose four other Freeholders in the place and stead of those whose office shall become vacant as aforesaid, and every Vestryman so elected shall take the oaths herein before appointed to be taken for the Qualification of other Vestrymen, Subscribe to the declaration herein before mentiond, and also repeat and subscribe the Teste, and thereafter shall be invested with all the
XXIII. And be it further Enacted by the Authority aforesaid, That if it shall so happen from badness of weather or any other unavoidable hindrance, that an election of Vestrymen for any Parish shall not be held upon any of the Days by this Act appointed for that purpose, that in such Case the Sheriff shall appoint a time within Twenty Days thereafter for electing Vestrymen in every such Parish and shall summon the Freeholders thereof to attend and elect Vestrymen in the manner by this Act directed, and every such election shall be as good and valid as if made upon the particular day herein appointed for that purpose; anything herein contained to the contrary, notwithstanding.
XXIV. And be it further Enacted by the Authority aforesaid, That the Sheriff of every County within this Province, at the Court next preceding every election of Vestrymen, shall publickly read this Act at the Door of the Court House between the hours of Twelve and one o'clock, and also give Notice of such Election by sitting up an Advertisement in writing at each Church and Chappel, in the Parish on some Sunday, at least forty days before the same, and every Sheriff failing so to do shall forfeit and pay Ten Pounds, Proclamation Money, to be recovered with Costs, in any Inferior Court of Pleas and Quarter Sessions, by Action of Debt, one half to the use of the Parish wherein such failure shall happen, and the other half to him or them who shall sue for the same.
XXV. And be it further Enacted by the Authority aforesaid, That all and every other act and acts, and every Clause and Article thereof, for so much as relates to any matter or thing within the purview of this Act, from henceforth shall be repealed and made void.
I. Whereas, making a Competent and Certain Provision for the Clergy may tend to encourage Ministers of the Gospel of True Piety and Learning to Settle in the Several Parishes in this Province,
II. Be it Enacted by the Governor, Council and Assembly, and by the Authority of the same, That every Minister now preferred, or hereafter to be Preferred to, or received into any Parish within this Province as incumbent thereof, shall have and receive a Salary of One Hundred Pounds, Proclamation Money, to be paid by the Church Wardens on or before the last day of June Annually, and every Minister of a Parish shall and may take and receive for the Services herein after mentioned the following fees, to-wit:
For marrying, if by a Licence, twenty shillings; If by Banns, five shillings. For Publishing Banns and Granting Certificate thereof, one Shilling & Six Pence.
For preaching a Funeral sermon, if required, forty shillings Proclamation money, and may demand and receive the said Perquisites if he shall not refuse or neglect to do the said Services, altho' the same shall be performed by any other Person.
III. And be it further Enacted by the Authority aforesaid, That in every Parish in this Province, where a Good and Convenient Glebe is not already purchased and appropriated, a Good, convenient Tract of Land to Contain Two Hundred Acres at least, shall be Purchased by the Vestry and assigned and set apart for a Glebe for the use of the Minister of such Parish and his
IV. And where a Mansion and Convenient out houses are not already erected for the Habitation of the Minister; It is hereby Enacted, That the Vestry of every such Parish shall have power, and they are hereby Authorized and required to cause to be erected and Built in such Glebe, one Convenient Mansion house of thirty eight feet in length and eighteen feet in width, a Kitchin, Barn, Stable, Dairy and Meat-house, with such other Conveniences as they shall think fit.
V. And to the end that the Buildings already erected, or hereafter to be erected upon every Glebe, may be kept in good repair, It is hereby further Enacted, That every Parish Minister within this Province shall, during the time of his being Minister of the Parish, keep and maintain the Mansion house, and the Out-houses and Conveniences erected, or to be erected on his Glebe, in Tenantable repair, and shall so leave the same at his removal from the Parish, or Death, (Accidents by Fire or Tempest only excepted) and in case any Minister shall fail so to do, such Minister, his Executors or Administrators shall be liable to the action of the Church Warden of the Parish for the time being, wherein the value of such repair shall be recovered and Damages, with costs of suit, and the Damages so recovered shall be applied, and laid out in necessary repairs upon the Glebe: And every Vestry of a vacant Parish is hereby impowered and required to put all the Buildings upon the Glebe of their Parish into such good and sufficient repair that they may be fit for the reception of the Succeeding Minister.
Provided nevertheless, That any Vestry who shall judge that the Minister has not wilfully committed any waste on his Glebe, may make such necessary Repairs at the Charge of their Parish, as they shall think fit.
VI. And be it further Enacted by the Authority aforesaid, That the sole right of presentation of a Minister to every Parish within this Province, shall be and remain in the several Vestries for and during the Term of Twelve Months next, after a vacancy shall happen in their respective parishes.
Provided always, That no Vestry shall make Presentation to any Parish of a Missionary whose duty requires him at any time to be absent from such Parish, unless such Missionary shall agree with the Vestry for such Yearly Salary not Exceeding one hundred Pounds Proclamation Money, as they shall think Reasonable, and whatever agreement shall be made between the Vestry and such Minister shall be binding during the continuance of his Mission; anything herein contained to the contrary, notwithstanding.
VII. And be it further Enacted by the Authority aforesaid, That where any Parish is, or shall become vacant by the Death or removal of the minister, or otherwise, the Vestry of such Parish shall have full power to employ some neighboring or other Minister or Ministers for serving in the Cure of such Parish during the Vacancy.
Provided always, that no Vestry shall present as Minister to their Parish, any Person who shall not first have a Certificate from the Bishop of London that such Minister hath been duly Ordained, Conformable to the Doctrine and Discipline of the Church of England and is of a Good Life and Conversation.
VIII. And be it further Enacted by the Authority aforesaid, That if any
Provided always, that if any Minister shall think himself aggrieved by the Sentence or Judgment of such Court be may appeal to the Governor or Commander in Chief for the time being, and Council, who on a Rehearing shall, and may Reverse or affirm such Sentence or Judgment.
IX. And be it further Enacted by the Authority aforesaid, That all and every other Act and Acts, and every Clause and Article thereof, for so much as relates to any Matter or thing within the Purview of this Act (Except one Act of Assembly, Intituled, An Act to Confirm an Agreement made by the present Church Wardens and Vestry of Christ Church Parish in Craven County with the Reverend James Reed) from henceforth shall be repealed and made void.
Read three times and ratified in Open Assembly this 23d May, 1760.