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Acts of the North Carolina General Assembly, 1760
North Carolina. General Assembly
May 26, 1760 - May 27, 1760
Volume 25, Pages 433-449

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LAWS OF NORTH CAROLINA--1760.

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 from thence continued, by Prorogation, to the Twenty-Sixth Day of May in the Year of our Lord One Thousand Seven Hundred and Sixty: Being the Second Session of this present Assembly. Arthur Dobbs, Esq., Governor.

CHAPTER I.
An Act, for establishing Superior Courts of Pleas and Grand Sessions, and Regulating the Proceedings therein.

I. Whereas, from the extensive Settlements in this Province, it is become greatly inconvenient, and extremely burthensome, for Suitors to attend the General Court at Edenton, or at any one Place within the same; and the Difficulty of procuring the Attendance of Witnesses from Distant and remote Parts, may, in that Case, render ineffectual the Prosecution of the greatest Offenders against his Majesty's Peace and Government.

II. Be it therefore Enacted, by the Governor, Council and Assembly, and by the Authority of the same, That from and after the Tenth Day of June next, this Province shall be divided into Five Districts; that is to say, The Wilmington, New Bern, Edenton, Halifax and Salisbury Districts; in each of which shall be a Court for the Tryal of Causes Civil and Criminal, established by the Name of the Superior Court of Pleas and Grand Sessions, for that District in which the same shall be held: Which Courts shall consist of the Chief Justice of the Province for the Time being, and Three other Justices whom the Governor or Commander in Chief for the Time being is hereby requested to constitute and appoint; who shall have Cognizance, and legal Jurisdiction of all Suits and Pleas, real, personal and mixed; and also try and determine all Suits and Matters relative to Legacies, filial Portions, Estates of Intestates; and all Pleas of the Crown, whether for Treasons, Felonies, Breach of the Peace, or other Crimes and Transgressions, of what Nature or Degree soever; whether brought before them by original or mesne Process, or by Writ of Error or Appeal, from any inferior Court, or by any other Means or Process whatsoever; and are hereby declared to have full Power and Authority, to give Judgment therein, and to award Execution, and all necessary Process thereupon; and to make Orders for issuing Letters Testamentary, and Letters of Administration; And in Case of the Death, or Absence of the Chief Justice, or any of the other Justices, it shall and may be lawful for any one or more of the said Justices, by himself or themselves, to hold any of the said Courts, and to take Cognizance of all Matters in the same depending, and give Judgment, and award Execution, in the same Manner as might have been done in Case the Chief Justice, and the Three other Justices had been all present.

III. Provided nevertheless, That no Suit shall be originally commenced or prosecuted in any of the said Courts for any Debt or Demand of less Value than Ten Pounds Proclamation Money, where the Plaintiff and the Defendant shall live in the same District; and if any Suits shall be commenced

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in any of the said Courts contrary to this Act, the same may be abated on the Plea of the Defendant.

IV. And be it further Enacted, by the Authority aforesaid, That the Chief Justice, or any one of the other Justices of the said Superior Courts, may as well out of Court as within the same, take the Probate or Acknowledgment of Deeds, or Letters of Attorney, and the private Examination of Feme-coverts, as hath heretofore been done by the Chief Justice in like Cases; which Proofs shall be deemed equally good and valid in Law as if taken in any Court of Record; any Law or Usage to the Contrary, notwithstanding.

V. And be it Enacted, by the Authority aforesaid, That the said superior Courts shall and may, each of them, respectively, by Summons, or other legal Process, upon Application made, compel any Person or Persons whatsoever, having in their possession or Custody, 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 the Clerk shall and may take Two Shillings and Eight Pence Proclamation Money, for recording each will.

VI. 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.

VII. And for the better preserving of Wills proved by the said Courts, Be it further Enacted, by the Authority aforesaid, That original Wills shall remain in the Clerk's Office among the Records of the respective Superior Courts of Pleas and Grand Sessions 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.

VIII. And be it further Enacted, by the Authority aforesaid, That the Clerk of every Superior 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 Lists the Secretary is hereby required to cause to be recorded in his Office, alphabetically, in the Books for that purpose, and shall and may take and receive Two Shillings and Eight Pence, Proclamation Money, for every such Order therein mentioned.

IX. And whereas, the Interest and Honour of the Crown, as well as the Security of the Subject, require that the Courts of Judicature should consist of Men learned in the Laws; Be it therefore Enacted, by the Authority aforesaid, That no Person shall, at any Time, be appointed a Justice of the Superior Courts of Pleas and Grand Sessions within this Province, who shall not have been regularly called to the Degree of an utter Barrister in some one of the Inns of Court in England; and is not of Five Years standing therein at the least; or shall have practiced the Law in the Principal Courts of Judicature in this Province, with Reputation and Character, by the Space of Seven Years; or in some one of the adjacent Provinces, to be certified

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by the Judges of the Principal Courts of Judicature held in such Province, before his being appointed Justice of the said Superior Courts; nor shall any Person, although qualified as aforesaid, be appointed to the said Office, unless he shall have been an Inhabitant of this Province at least one Year before such Appointment.

X. And be it further Enacted by the Authority aforesaid, That on the Death or Removal of any of the Justices of the Superior Courts of Pleas and Grand Sessions, it shall and may be lawful for the Governor or Commander in Chief for the Time being, to constitute and appoint another or other Justices, qualified as aforesaid, to supply such Vacancy or Vacancies, in the Room of such Justice or Justices so dead or removed.

XI. And be it further Enacted, by the Authority aforesaid, That the Justices of the Superior Courts of Pleas and Grand Sessions of this Province, shall, within the same, conjunctively and separately, have, use, exercise and enjoy, the same Powers and Authorities, Rights, Privileges and Preheminences, as are had, used, exercised and enjoyed, by the Justices of the Courts of Westminster in England; and hold their Offices, quam diu se bene Gesserint.

XII. And be it Enacted, by the Authority aforesaid, That the said Justices to be appointed in pursuance of this Act, for their Trouble and Expence in attending Courts in their respective Offices, shall have and receive the Sum of Twelve Hundred Pounds Proclamation Money, per Annum, to be paid out of the Publick Treasury by the Publick Treasurers for the Time being, by Half Yearly Payments, until such Time as his Majesty shall be graciously pleased to make the same chargeable on his Publick Revenue arising within this Province; that is to say, The said Sum shall be paid to the said Justices in Proportion to the Number of Days they shall respectively officiate as such in each of the said Courts in every Half Year during their Continuance in Office.

XIII. And be it further Enacted, by the Authority aforesaid, That the Clerks of the said Courts, respectively, shall keep an Exact Account of the Number of Days that each of the said Justices shall officiate in the Court whereof he is Clerk, and certify the same to the Publick Treasurers once in every Six Months; and every Clerk failing or neglecting so to do shall forfeit and pay the Sum of One Hundred Pounds Proclamation Money, for every such Failure or Neglect: To be recovered by Action of Debt, with Costs, in any of the said Courts; One Half to the Use of his Majesty, his Heirs and Successors, towards defraying the contingent Charges of this Government, and the other Half to the Justice or Justices thereby injured.

XIV. And for the Safety of Suitors, and to prevent Irregularities in making up the Records of the Courts; Be it Enacted, by the Authority aforesaid, That the Chief Justice be, and is hereby impowered, to appoint experienced and discreet Clerks of the Superior Courts of Pleas and Grand Sessions, who shall, each of them, give Bond with good and sufficient Security, to our Sovereign Lord the King, his Heirs and Successors, in the Penalty of One Thousand Pounds, Sterling, for the safe Keeping the Records, and faithful Discharge of his Duty in Office; and also, shall take the Oaths by Law appointed for the Qualification of Publick Officers, repeat and subscribe the Test, and also take an Oath, honestly and truly to demean himself in his Office during his Continuance therein; which said Bond shall be lodged in the Secretary's Office: And in Case of a Breach of the Condition thereof, may be put in Suit for the Benefit of, and at the proper Cost and Charges of the Party or Parties injured, and shall not become void upon the first

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Recovery, or if Judgment shall be given against the King; but may, from Time to Time, be put in Suit by Action of Debt, or Scire facias, until the whole Penalty shall be recovered; and when any Judgment shall be obtained upon such Bond, the Damages assessed, shall by Order of the Court, be paid to the Person or Persons injured.

XV. And be it further Enacted, by the Authority aforesaid, That the Chief Justice, for his. Trouble and Expence in attending the said Courts, shall have and receive the Sum of Twenty Six Pounds for each of the said Courts he shall hold according to the Directions of this Act; and the Attorney General shall likewise be allowed, and receive the Sum of Twelve Pounds, for each of the said Courts, he shall give Attendance at by himself, or Deputy, to be paid out of the Publick Treasury by Half Yearly Payments.

XVI. And be it further Enacted, by the Authority aforesaid, That the Chief Justice, and the rest of the Justices of the Superior Courts of Pleas and Grand Sessions, shall, before they Act in either of the said Superior Courts, take the Oaths by Law appointed for the Qualification of Publick Officers, and repeat and subscribe the Test; and also take the following Oath of Office, to-wit:

I, A. B. do swear, that I will well and truly serve our Sovereign Lord the King, and his People, in the Office of Chief Justice, or Justice (as the Case may be) of the Superior Courts of Pleas and Grand Sessions of North-Carolina; and I will not council nor assent to any Thing that may tend to the Hurt or disinheriting the King; I will do equal Law and Right to all the King's Subjects, Rich and Poor, without having Regard to any Person; I will not, wittingly nor willingly, take, by myself, or any other Person, any Gift or Reward whatsoever for any Matter or Thing by me to be done by Virtue of my Office, except the Fees and Salary by Law appointed, or such other Salaries his Majesty, his Heirs and Successors, shall think fit to allow me for my Service; I will not maintain by myself, or any other, privately, or openly, any Plea or Quarrel hanging in any of the King's Courts; I will not delay any Person of common Right for the Letter of the King, or any other Person to me for any Cause; and in Case any Letters come to me contrary to Law, I will do nothing for such Letters, but will proceed to do the Law the said Letters notwithstanding; and finally, in all Things belonging to my said Office during my Continuance therein, I will faithfully, truly and justly, according to the best of my Skill and Judgment, do equal and impartial Justice. So help me God.

And if the Chief Justice or either of the other Justices shall presume to act in his Office, in either of the Superior Courts of Pleas and Grand Sessions, without taking the Oaths, and subscribing the Test by this Act directed to be by him taken and subscribed, he shall forfeit Five Hundred Pounds; to be recovered by Action of Debt, Bill, Plaint or Information, in either of the Superior Courts of Pleas; One Half to the Use of his Majesty, his Heirs and Successors, towards defraying the Charges of Government, and the other Half to the Informer.

XVII. And be it Enacted, by the Authority aforesaid, That the Superior Courts of Pleas and Grand Sessions, shall, annually, be held for several Districts in this Province, at the following Times and Places; that is to say, For the District of Edenton, at the Town of Edenton; for the Counties of Chowan, Perquimons, Pasquotank, Currituck, Bertie, Tyrrel, and Hertford, on the Twentieth Day of May and November.

In the District of Halifax, at the Town of Halifax; for the Counties of

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Northampton, Halifax, Edgcomb, Granville, Johnston, and Orange, on the First Day of March and September.

In the District of Salisbury, at the Town of Salisbury; for the Counties of Rowan and Anson, on the Twenty Second Day of March and September.

In the District of Wilmington, at the Town of Wilmington; for the Counties of New-Hanover, Bladen, Onslow, Duplin, and Cumberland, on the Fifteenth Day of April and October.

In the District of New Bern, at the Town of New Bern; for the Counties of Craven, Carteret, Beaufort, Hyde, and Dobbs, on the Thirtieth Day of April and October.

And each Term shall continue Ten natural Days, exclusive of Sundays, by Adjournment, de die in Diem, if the Business shall require so long Time, otherwise may be sooner determined.

XVIII. Provided always, That if the Day by this Act appointed for holding any of the said Courts, shall fall on a Sunday, then such Court shall be held the next succeeding Day; any Thing herein contained to the contrary notwithstanding.

XIX. And be it further Enacted, by the Authority aforesaid, That all real Actions, Ejectments, and Actions of Trespass, Quare Clausum Fregit, Suits on Penal Statutes and Pleas of the Crown, shall be commenced and prosecuted in the Superior Court of the District wherein the Cause of Action shall have arisen, or the Offence shall have been committed, and not in any other District, unless for Riots, Insurrections or Transgressions, wherein Two or more Persons shall have been jointly concerned; in either of which Cases it shall and may be lawful for the Party aggrieved, or the King's Attorney-General, to prosecute such Malefactors in the Superior Court in any other District than that in which the Offence shall have been committed; Any Thing herein contained to the contrary notwithstanding. And all Actions of Debt or other than on Penal Statutes, all Actions of Detinue, Replevin, Actions of Account Render, Action of Trespass for Assault and Battery, and for the unlawful taking of Goods; all Actions upon the Case and Suits for Legacies, or for the Distributive Shares of Intestates Estates, where the Plaintiff and Defendant live in the same District, shall be brought to the Superior Court of such District, and not to any other: And where any such Action or Suit shall be brought to the Court of any other District than that in which both Parties live, such Action or Suit may be abated by the Plea of the Defendant, unless on sufficient Reasons shewn, on Oath, and approved, for bringing such Suit in some other District, Leave be granted to the Plaintiff by some one of the Judges of the Courts, and by him certified, previous to the Commencement of such Suit; in which Case, it may be lawful to prosecute any of the said Actions or Suits in the Court of any District adjacent to that in which the Parties reside; any Thing herein contained to the contrary notwithstanding.

XX. And be it further Enacted, by the Authority aforesaid, That the said Courts shall not be discontinued, nor any of the Proceedings in them depending, by Reason of the Death of the Chief Justice, or any of the other Justices, or any other Let or Hindrance of their attending at any Term, but in such Case, all Pleas, Causes, Matters and Things therein depending, shall stand continued in the same Condition in which they then shall be, to the next succeeding Term.

XXI. And be it further Enacted, by the Authority aforesaid, That every Summons, Writ, and other legal Process, to compel any Person to appear in any of the Superior Courts of Pleas and Grand Sessions, shall bear Test

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of the Chief Justice, and be signed by the Clerk of the Court from whence such Process shall issue, and be made returnable to the same Court; and the Sheriff shall return the said Writ or Process to such Court accordingly.

XXII. And be it further Enacted, by the Authority aforesaid, That until the Commencement of the first Term of each of the said Superior Courts, respectively, Writs and other Process may bear Test at the Time of issuing the same; and such Writs and Process so tested before such Term, shall be valid in Law; any Usage or Practice of Court to the contrary notwithstanding.

XXIII. And be it further Enacted, by the Authority aforesaid, That all such Writs or Process, except Subpoenas for Witnesses, returnable immediately shall be returnable the first Day of the Term to which the same is returnable, and shall be executed at least Ten Days before the Beginning of such Term: And if any original or mesne Process shall be taken out in Term Time, or within Ten Days before the Beginning of any Term, such Process shall be made returnable to the Term next succeeding, or the Term succeeding that which shall commence within Ten Days after taking out such Process, and not otherwise; and all Process made returnable, or executed at any other Time, or in any other Manner than by this Act directed, shall be void.

XXIV. Provided always, That nothing herein contained shall be construed to invalidate or vacate any Process, Warrant or Precept, issued by any of the Justices of the said Courts, or Justices of the Peace, or Clerk of the Crown, on any Criminal Prosecution, or in his Majesty's Behalf, but that the same may be returnable at any Day in the Term to which the same is returnable; and the Proceedings in Criminal Suits and Prosecutions shall be had according to the Laws and Statutes of Great-Britain, and of this Province; any Thing herein contained to the contrary notwithstanding.

XXV. And be it Enacted, by the Authority aforesaid, That when any Writ shall issue from any of the said Courts, whereby the Sheriff shall be commanded to take the Body of any Person or Persons to answer in any Action in either of the said Courts, such Sheriff shall take Bond, with Two sufficient Securities, for double the Sum for which such Person or Persons shall be held in Arrest; except where the Defendants are Executors or Administrators, or sued on Penal Statutes, and shall return such Bond with the Writ: And in Case the Sheriff shall fail or neglect to take such Bail, or the Bail returned be held insufficient on Exception taken, the Sheriff, in either of the said Cases, shall be deemed and stand as Special Bail, and the Plaintiff may proceed on to Judgment according to the Rules herein after mentioned; and shall and may take out Execution against the Defendant, or Sheriff, or both; any Usage or Custom to the contrary notwithstanding.

XXVI. Provided always, That if the Defendant shall be admitted to enter his Appearance without Bail, and shall put in Bail before the Rules to plead shall expire then the said Sheriff shall be discharged. Provided also, That the Defendant may be surrendered at any Time before final Judgment be entered against him.

XXVII. And be it further Enacted, That when any Sheriff shall return that he hath taken the Body of any Defendant and committed him to the Prison of his County, (which is hereby declared to be the proper Prison for such commitment,) for Want of Bail, the Plaintiff may enter the Defendant's Appearance, and he shall be at Liberty to plead as if such Appearance has been entered by Himself, and the Plaintiff may proceed to Judgment

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as in other Cases in this Act directed; nevertheless, the Defendant shall not be discharged out of Custody but by putting in Bail, or Rule of Court.

XXVIII. And be it further Enacted, by the Authority aforesaid, That if the Sheriff shall neglect to return any Writ or Writs issuing out of any of the said Courts, which shall be delivered to him Twenty Days before the sitting of the Court to which such Writ or Writs shall be returnable, the Sheriff, for every such Neglect, on Motion of the Plaintiff, and Proof of such Delivery, shall be ordered and obliged to pay the Party aggrieved the Sum of Five Pounds, Proclamation Money, and be further liable to the Action of the Party injured; unless the said Sheriff can show sufficient Cause to the Court from whence such Process issued, at the next succeeding Court after such Order.

XXIX. And be it further Enacted, That all Bail taken acording to the Directions of this Act, shall be deemed, held and taken to be special Bail, and as such, liable to the Recovery of the Plaintiff; but the Plaintiff, after final Judgment, shall not take out Execution against such Bail until an Execution be first returned, that the Defendant is not to be found; and also shall take out a Scire facias, returnable to the said Court, which shall be made known to the Bail; and that after the Return of such Execution against the Principal, and Scire facias aforesaid against the Bail, Execution may issue against the Principal and Securities, or either of them, or either of their Estates, unless the Bail shall surrender the Principal at or before the Return of the first Scire facias; any Law, Usage, or Custom to the contrary notwithstanding.

XXX. Provided nevertheless, if any Sheriff shall return, on a Scire facias to him directed, that the Principal is imprisoned in the Prison of his County, or any other, by Virtue of any Process in any Civil Action, the Court to which such Scire facias is returnable, shall, on Motion of the Plaintiff or Bail, order and direct that such Principal be retained in the Gaol where he or she shall be a Prisoner, until he or she shall have paid the Plaintiff's Judgment with Costs, or be otherwise discharged by due course of Law; a Copy of which Order being served on the Gaoler of such Prison before such Prisoner's Releasement, shall be a sufficient Authority to him to retain such Prisoner until such Order shall be complied with; and also shall be deemed a Surrender of such Principal and as such discharge the Bail.

XXXI. And for the better ascertaining what Process shall issue when the Sheriff shall return that the Defendant is not to be found within his Bailiwick; Be it Enacted, That when the Sheriff shall make return as aforesaid, in any Civil Action, the Plaintiff or Plaintiffs, at his or their Election, may sue out an Attachment against the Estate of such Defendant, or an Alias, or Pluries Capias, until he be arrested, returnable as is hereinbefore directed for the Return of original Process; And if the Sheriff shall return any Goods by him attached, and the Defendant shall fail to plead within the Time hereinafter directed, the Plaintiff shall be intitled, if in an Action of Debt, to final Judgment, and if in an Action on the Case, a Judgment by Default, and a Writ of Enquiry of Damages to be executed at the next Court; and the Goods so attached, if not replevied or sold, according to the Directions of this Act for Goods attached on original Attachment, shall remain in the Custody of the Sheriff till such Judgment obtained, and then to be disposed of in the same Manner as Goods taken on Execution on a Writ of Fieri Facias; and if the Judgment shall not be satisfied by the Goods attached, the Plaintiff may have Execution for the Residue.

XXXII. And be it further Enacted, by the Authority aforesaid, That it shall be lawful for the Chief Justice, or other Justices of the said Superior

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Courts, or any Justice of an Inferior Court, upon Complaint made by any Person, on Oath, that his Debtor has removed, or is removing himself out of the County privately, or absconds or conceals himself so that the ordinary Process of Law cannot be served upon him, to grant an Attachment against the Estate of such Debtor, wherever the same shall be found, or in the Hands of any Person or Persons indebted to, or having the Effects of the party absconding, or so much thereof as shall be of value sufficient to satisfy the Debt and Costs of such Complaint; which Attachment shall be returnable to the Court where the Debt or Matter is cognizable; and such Attachment shall be deemed the leading Process in such Action; and the same Proceedings shall be had thereon as on an Attachment on a Return of a Non est Inventus by the Sheriff.

XXXIII. Provided always, That every such Justice, before the granting such Attachment, shall take Bond and Security of the Party for whom the same shall be issued, in double the Sum to be attached, payable to the Defendant, for satisfying and paying all Costs which shall be awarded to the said Defendant in Case the Plaintiff suing out the Attachment should be cast in his Suit; and also all Damages which shall be recovered against the said Plaintiff for suing out such Attachment; Which Bond shall be returned to the Court to which the Attachment is returnable, by the Justice who shall grant the same; and every Attachment issued without such Bond taken and returned as aforesaid, and Oath made as aforementioned, is hereby declared void, and shall be abated.

XXXIV. And be it further Enacted, That where any Person, Inhabitant of any other Government, shall be indebted to, or hath done any Tort or Injury to any Person, a Resident of this Province, and cannot personally be served with Process and hath Effects in this Government, any of the said Justices may grant an Attachment against the Estate of such Person indebted, or who hath done any Tort or Injury as aforesaid, under the Rules, Restrictions, and Regulations aforementioned; and the same Proceedings may be had thereon.

XXXV. And be it Enacted, by the Authority aforesaid, That when Goods or other Estate shall be attached by Virtue of an Attachment, whether judicial or original, it shall and may be lawful for such Person or Persons, his, her, or their Attorney, to replevy the same, by giving Bond with good Security to the Sheriff or other Officer serving the said Attachment, (which Bond the Sheriff or other Officer is hereby impowered and required to take) to appear at the Court to which the Attachment shall be returnable; and to abide by, perform and satisfy the Order and Judgment of such Court: And where the Estate attached is perishable, if the Person or Persons to whom it belongs shall not, within Thirty Days after serving such Attachment, replevy the same, then such Estate shall be sold at Public Vendue by the Sheriff or other Officer serving such Attachment; such Sheriff or other Officer having first advertised such Sale at every Church and Chapel in his County; and the Money arising from such Sale shall be liable to the Judgment obtained upon such Attachment, or other Order of such Court: And where the Sheriff or other Officer shall serve an Attachment in the Hands of any Person or Persons indebted to, or having any of the effects of the party absconding, he shall, at the same time, summons such Garnishee or Garnishees to appear at the Court to which the Attachment is returnable, within the first four days thereof, there to answer upon oath, what he or she is indebted to such party, and what Effects of such Party he or she hath in his or her Hands, and had at the Time of serving the Attachment; and where any Attachment shall be returned, served in the Hands of any

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Garnishee in Manner aforesaid, it shall be lawful, upon his or her Appearance and Examination in Manner aforementioned, to enter up Judgment, and award Execution, against every such Garnishee and Garnishees, for all Sums of Money due from him, her, or them, to the Person absconding, or in his, her, or their Custody or Possession, for the Use of the Party obtaining such Attachment, or so much thereof as shall be of value sufficient to satisfy the Debt and Costs of Complaint; and all Goods and Effects whatsoever, in the Hands of any Garnishee or Garnishees, belonging to such absconding Persons, shall be liable to satisfy such Judgment: And where any Garnishee shall be returned by the Sheriff or other Officer, summoned in Manner aforesaid, and shall fail to appear and discover, on Oath, in Manner by this Act directed, it shall be lawful, and the Court is hereby authorized, to enter a conditional Judgment against such Garnishee; and if he shall fail to appear at the next Court and discover, on Oath, in Manner aforesaid, and also to give sufficient Reasons for his not appearing agreeable to such Summons, the Court shall, and are hereby required, to confirm such Judgment, and award Execution, for the Plaintiff's whole Debt, or Damages and Costs.

XXXVI. And whereas divers Persons, possessed of Lands, Tenements and Hereditaments within this Province, having contracted, or who may contract Debts with Merchants and others, or have committed or may commit Torts or Injuries to Persons therein; and have departed, or may depart the same without leaving personal Estate to satisfy such Debts: For Remedy whereof, Be it Enacted, by the Authority aforesaid, That any Justice shall and may grant an Attachment at the Prayer of the Person or Persons to whom such Debtor or Debtors shall be indebted, or to whom such Tort or Injury hath or may be done, directed to the Sheriff of the County where the Lands lie, returnable to the Court wherein the same is cognizable; and if the Sheriff return that the Person has no personal Estate within his Bailiwick, the Court shall grant Judgment for the Debt due, Proof being first made; which Judgment, in Actions of Debt, shall be final; and in other Actions, a Writ of Enquiry shall be executed, on the Plaintiff's Motion, and a Writ of Fieri Facias shall be awarded, returnable to the next Court, by Virtue whereof, the Sheriff, if he cannot find personal Estate of the Defendant within his Bailiwick sufficient to satisfy such Judgment and Costs, shall sell such Lands and Tenements, having given Public Notice of such Sale for One Month at least before the Day appointed for the same; and shall give the Purchaser a Deed of Bargain and Sale; which shall, and is hereby declared to be good and effectual in Law to convey all the Right, Title, Property and Estate of the Defendant or Defendants in such Lands or Tenements; and out of the Money arising by such Sale, shall satisfy and pay the said Judgments and Costs; and pay the Overplus (if any) to the Defendant or Defendants.

XXXVII. And for Prevention of Error in the issuing Attachments and taking Bonds thereupon; Be it Enacted by the Authority aforesaid, That the following Form shall be observed and used, that is to say, the Attachment as follows, to-wit:

NORTH CAROLINA, } ss.
. . . . . . . . . . . . .

George the Second, by the Grace of God, of Great Britain, France and Ireland, King, Defender of the Faith, &c. To the Sheriff of. . . . . . . . . . . . County, Greeting. Whereas, A. B. hath complained to C. D., our Chief Justice,

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or one of the Justices of the Superior Courts of Pleas and Grand Sessions, of the Province of North Carolina, or one of the Justices of the Inferior Courts of Pleas, of the County of. . . . . . . . (as the case may be), that E. F., late of your County, Planter, is justly indebted to him in the Sum of. . . . . . . ., or hath endamaged him to the Amount of. . . . . . . . (as the Complaint shall be made), and hath made Oath that the said E. F. hath removed himself privately out of your said county, or so absconds or conceals himself that the ordinary Process of Law cannot be served on him; and hath given Bond and Security according to the Direction of the Act of Assembly in such Case made and provided. We therefore command you that you attach the Estate of the said E. F. (if to be found in your Bailiwick), or so much thereof, repleviable on Security, as shall be of Value sufficient to satisfy the said Debt or Damages, according to the Complaint and Costs; and such Estate so attached, in your Hands to secure, or so to provide that the same may be liable to further Proceedings thereupon, to be had at our next Superior Court of Pleas and Grand Sessions, to be held for the District of . . . . . . . . at the Term of . . . . . . . . on the . . . . . . . . Day in . . . . . . . . next, so as to compel the said E. F. to appear and answer the above Complaint of the said A. B. when and where you shall make known to our said Court how you shall have executed this Writ. Witness . . . . . . . . our said Chief Justice of our said Province at . . . . . . . . aforesaid the . . . . . . . . Day of . . . . . . . . in the . . . . . . . . Year of our Reign.

Which Attachment shall be signed by the Chief Justice, or other Justice who shall grant the same; and the Bond to be given on obtaining such Attachment, shall be in the following Form, to-wit:

Know all Men by these Presents, That We A. B., G. K. and I. K. all of the County of . . . . . . . . are held and firmly bound unto E. F. in the Sum of . . . . . . . . (double the Sum in the Attachment) to be paid to the said E. F. his Executors, Administrators, or Assigns: To which Payment well and truly to be made, we bind ourselves, and each of us, our, and each of our Heirs, Executors, and Administrators, jointly and severally, firmly by these Presents. Sealed with our Seals, and dated this . . . . . . . . Day of . . . . . . . . in the Year of our Lord.

The Condition of the above Obligation is such, that whereas the above bounden A. B. hath, the Day of the Date of these Presents, prayed an Attachment against the Estate of the above mentioned E. F. for the Sum of . . . . . . . . (the Sum complained for) and hath obtained the same, returnable to the next Superior Cort of Pleas and Grand Sessions, to be held for the District of . . . . . . . . on the. . . . . . . . Day in . . . . . . . . next: Now if the said A. B. shall prosecute his said Suit with Effect, or in Case he be cast therein, shall well and truly pay and satisfy to the said E. F. all such Costs and Damages as shall be awarded and recovered against the said A. B. then the above Obligation to be void; otherwise to remain in full Force and Virtue.

XXXVIII. And be it further Enacted, by the Authority aforesaid, That the following Rules and Methods shall be observed in the Superior Courts of Pleas and Grand Sessions, to-wit:

The Plaintiff shall file his Declaration in the Clerk's Office on or before the Second Day of the Term to which his Suit is brought, and serve the Defendant with a Copy at least Five Days before the Commencement of such Term, or the Action shall be abated, upon the Plea of the Defendant.

That the Defendant shall appear and plead, or demur, within the first Three Days of the Term to which the Writ is returnable, otherwise the Plaintiff may have Judgment by Default; in which Case Judgment shall

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be final, unless where Damages out to be suggested on the Roll; and in that Case, and in all others where the Recovery shall be in Damages, a Writ of Enquiry shall be executed at the next Term. Provided, That where the Nature of the Action requires Special pleading, the Time for pleading may be enlarged by the Court.

That where the Defendant pleads specially, the Plaintiff shall reply or demur in Three Days, or a Non-pross be entered by the Defendant; and if the Plaintiff replies, and in his Replication tenders an Issue, the Defendant shall Join Issue, or Demur, in Three Days, or the Plaintiff may have Judgment; and when the Defendant rejoins to the Plaintiff's Replication, he shall file his Rejoinder in Three Days, or Judgment shall go against him, unless the Time for pleading shall be enlarged as aforesaid, and the same Time shall be given, and Rules observed, through the whole Course of the Pleadings.

That all Issues shall be tried at the Term next succeeding after Issue joined, without Notice of Tryal on either Side; nor shall any Cause be delayed or continued longer without special Cause shewn to, and approved by the Court.

That the Clerk of every Court, before the Commencement of the Term, shall enter, in a particular Docket to be kept for that Purpose, all such Causes, and those only, in which any Issue is to be tried, or Damages to be enquired, special Verdict, Case agreed, or Demurrer to be argued, in the same Order as the Suits stand in the Course of Proceedings.

That when a Special Verdict shall be found, Case agreed, Demurrer, or Bill of Exception to Evidence tendered, Time shall be allowed, upon Motion of either Party, to the next Term to argue the same.

That for the more entire and better Preservation of the Records of the Courts where any Cause is finally determined, the Clerk shall enter all the Proceedings therein, and other Matters relating thereto, in a Book well Bound, so that an entire and perfect Record may be made thereof.

That all Jury Causes be first tried.

That all Motions in arrest of Judgment, shall be argued within the Three last Days of the Term the Issue is tried; the Defendant's Attorney first serving the Plaintiff's Attorney with a Copy of the Reasons, in arrest of Judgment; the next Day after such Motion.

That Arguments on Writs of Error, special Verdict, Cases agreed, Demurrers, Petitions for Legacies, and Distributions of Intestates Estates, shall be heard within the Four last Days of the Term.

That when any final Judgment shall be obtained, the Clerk shall allow a Lawyer's Fee in the Bill of Costs, if the Party employed one, which is hereby declared to be Thirty Shillings, Proclamation Money.

That no Plea of Abatement shall be received in any of the said Courts, unless the Party offering the same shall, by Affidavit, or otherwise, prove the Truth of such Plea.

That where a Plea in Abatement shall be pleaded in any Action in either of the said Courts depending, and upon Argument the same shall be adjudged insufficient, the Plaintiff or Plaintiffs shall recover, against the Defendant, full Costs, to the Time of over ruling such Plea, including the Costs of that Court, a Lawyer's Fee only excepted, and the Plaintiff, in Replevin, or the Defendant, in any other Action, may plead as many several Matters as may be necessary for his Defence, so as he be not admitted to plead and demur to the whole.

XXXIX. And be it further Enacted, That all the Statutes of Jeofails, and

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Amendments which are now in Force in England, are hereby declared to extend to, and be in Force in this Province; and shall be duly observed by all Judges and Justices of the several Courts of Record within the same, according to the true Intent and Meaning of said Statutes.

XL. And be it further Enacted, by the Authority aforesaid, That the following Orders, Rules and Methods, for taking the Testimony of Witnesses, in all Cases to be depending in the said Courts, be observed and put in Practice, to-wit:

That in all Causes where witnesses are to appear at either of the said Courts, a Subpoena shall be issued by the Clerk, directed to the Sheriff of the County where the Witness or Witnesses reside, mentioning the Time and Place for their Appearance, and the Names of the Parties to the Suit wherein they are to give Evidence, and at whose Instance they are summoned.

That every Subpoena, returnable immediately, shall be personally served on any Person who shall be thereby summoned as a Witness to attend any of the said Courts.

That a Copy of every Subpoena, issued by the Clerk, in the Vacation, and returnable to the first, or any other Day of the Term, in Case the Witness or Witnesses to be thereby summoned are not found at Home, may be left at the usual Place of Residence of such Witness or Witnesses; and the leaving such Copy as aforesaid, shall be a good and legal Service; and the Person or Persons thereby summoned, are bound to appear under the like Penalty as if Personally summoned.

XLI. And be it further Enacted, by the Authority aforesaid, That if any Person be summoned to attend as aforesaid, or for whom such Copy of a Summons shall be left; shall fail to appear accordingly; every such Person so failing, shall forfeit, to the Person or Persons at whose Instance the Subpoena Issued, Twenty Pounds, Proclamation Money; and shall be further liable to an Action on the Case for whatever Damages shall be sustained for want of such Witness's Testimony.

XLII. Provided always, That if sufficient Cause be shewn by the Person so summoned, or for whom Copies shall be so left, and failing to appear, of his or her Incapacity to attend at the Time he or she ought to have appeared, then no Forfeiture or Penalty shall be incurred by such Failure; but if sufficient Cause be not shewn at the next succeeding Term after such Failure or Notice given, it shall and may be lawful for the Court, on Motion, to grant Judgment for the Forfeiture before mentioned, against the Person or Persons so summoned and failing to appear as aforesaid: And when any Person summoned as a Witness in any Cause as aforesaid, shall be confined in any Prison or Gaol in this Province, the Superior Court, for the better Manifestation of the Truth and Advancement of Justice, shall and may grant a Habeas Corpus ad Testificandum, to remove such Person into such Court; the Party praying such Writ having first entered into Bond, with sufficient Security, to defray the Expences of such Removal; and to answer, in Case of such Witness's Escape, all Damages that shall or may be occasioned to any Person thereby.

XLIII. And be it further Enacted, by the Authority aforesaid, That every Person summoned to appear as a Witness in any of the said Superior 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, until 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

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herein before mentioned; any Law or Usage to the contrary notwithstanding.

XLIV. And be it further Enacted by the Authority aforesaid, That if any Witness, by Sickness, Age, or any other Cause, shall be incapable of attending Court to give Evidence, or shall reside out of the Province, on Oath made thereof, or the Truth of the same otherwise sufficiently appearing, the Judge or Justice of the Court wherein the Suit is depending, shall and may, by Commission, as from Time to Time may be necessary, impower such and so many Persons as they shall think necessary, to take and receive a Deposition of such Witnesses; which, when duly returned, shall be received as legal Evidence.

XLV. Provided always, That the party praying such Commission as aforesaid, shall make known to the adverse Party, the Time and Place when and where such Commission is to be executed, at least ten Days before the Execution thereof; and the adverse Party shall have Liberty to cross examine any Witness or Witnesses whose Deposition shall be so taken; and all Depositions otherwise taken than is herein directed, unless by Consent of Parties, shall be void, to all Intents and Purposes; And if any Person who shall be summoned as a Witness in either of the Superior Courts, or before any Person appointed to take Depositions as aforesaid, shall refuse to give Evidence, on Oath, such Person so refusing, shall be committed to the common Gaol, there to remain without Bail or Mainprize, until he or she shall be willing to give Testimony in such Manner as the Law now doth, or hereafter shall direct: Provided, That the People called Quakers, shall have the same Liberty of giving their Evidence, by Way of solemn Affirmation, as by Act of Parliament made in the Eighth Year of the Reign of his Majesty King George the First, intituled, An Act, for granting to the People called Quakers, such Terms of Affirmation or Declaration as may remove the Difficulty which many of them lie under; and that all Negroes, Indians, Mulattoes, and all of mixed Blood, descended from Negro or Indian Ancestors to the Third Generation, Bond or Free, shall be deemed and taken to be incapable in Law to be Witnesses in any Cause whatsoever, except against each other.

XLVI. And be it further Enacted, by the Authority aforesaid, That during the Attendance of any Person summoned as a Witness to a Superior or Inferior Court, and as such Person is going to and returning from the Place of such Attendance, allowing one Day for every Twenty-five Miles such Person's Residence shall be distant from the same, no Sheriff or other Officer shall serve or execute, on any Person so attending, going to, or returning from such Court, any Writ, Process, Warrant, Order, Judgment or Decree, in any Cause; and if any such shall be served or executed, the same shall and is hereby declared to be null and void.

XLVII And be it further Enacted by the Authority aforesaid, That for every Mile any Witness shall travel, either going to or returning from the Court to which such Witness shall be summoned to appear, there shall be paid to him by the Party at whose Instance the Subpoena issued, Three Half-pence, Proclamation Money, per Mile, together with the necessary Charges of Ferriage; and Two Shillings like money for every Days Attendance, from the Time appointed for Appearance until the Time such Person shall have given Evidence, or shall be discharged; provided, That in any Bill of Costs, there shall not be allowed the Charge of more than Two Witnesses to any one particular Matter of Fact.

XLVIII. And be it further Enacted by the Authority aforesaid, That the

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Superior Courts shall have Power and Authority to grant Writs of Error for Correcting the Errors of any Inferior Court where the same shall be necessary, and the Party praying such Writ of Error before the same shall issue, shall assign Error, and give Bond and Security, to be approved by the Court, to abide by, perform, and fulfil the Judgment which shall be given thereon by such Court: And if upon Argument, if any Writ of Error, or Tryal of any Appeal from any Inferior Court, the Judgment or Decree of any Inferior Court shall be reversed, the Superior shall grant such Judgment, or make such Decree thereupon as should have been entered or made up in such Inferior Court; and shall and may issue Execution thereon without granting a Writ of Procedendo; and to Prevent the obtaining Writs of Error by Surprize, the Party praying such Writ, in a Civil Cause, shall give Notice to the adverse Party of his moving for such Writ at least Ten Days before such Motion; and no such Writ shall be granted without an Affidavit of such Notice.

XLIX. And for preventing long and oppressive Imprisonments, Be it Enacted, by the Authority aforesaid, That where any Person shall be committed, in any Civil Action, to the Gaol of any County, by Process issuing out of any Inferior Court, for any Matter cognizable in the Superior Court, it shall and may be lawful for the Superior Court of the District within which such Person shall be imprisoned, upon Petition, and Cause shewn by the Person so imprisoned, to issue out a Habeas Corpus Cum Causa, to remove the Body of such Defendant in the Gaol of such Superior Court, which is hereby declared to be the Gaol of the Supreme Court formerly held in such District, and the Cause of such Commitment into the said Superior Court; and the Clerk of such Superior Court is hereby authorized and required, upon Direction of the Court, to issue such Writ accordingly; and the Court shall and may proceed therein, and bail, or discharge, or remand such Prisoner as the Right of the Case shall require.

L. And be it further Enacted, by the Authority aforesaid, That as well the Chief Justice for the Time being, as the several Clerks, and other ministerial Officers of the said Courts, shall be allowed, and shall have, take and receive for all Services by them, or any of them done, the same Fees as are allowed for the like Services by an Act of Assembly, intitled, An Act for regulating the several officers Fees within this Province, and ascertaining the Method of paying the same.

LI. And be it further Enacted, by the Authority aforesaid, That all Causes, Actions, Writs, Suits, Plaints, Process, Recognizances, Indictments, and Presentments whatsoever, that are, or shall be depending in the General Court, or either of the Supreme Courts of Justice, Oyer and Terminer, and General Gaol Delivery within 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 on the Tenth Day of June next, shall be transposed and carried off the Dockets in each of the said Courts, into the Dockets of the said Superior Courts, in the same Order they shall then stand in the Dockets of the General Court and Supreme Courts of Justice, Oyer and Terminer, and General Gaol Delivery, respectively; and shall be proceeded in by the said Superior Courts according to the Methods by this Act directed, as if the same had been originally commenced in any of the Superior Courts; due Regard being had that such Court take Cognizance of all such Suits, Matters and Things, the Cause or Causes whereof arise, or is suggested to have arisen within their respective Districts.

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LII. And be it further Enacted, by the Authority aforesaid, That in all Cases wherein by any Act of Assembly heretofore made, Action is given, or Recovery directed to be had in the General Court, or in any of the Supreme Courts of Justice, Oyer and Terminer, and General Gaol Delivery, within this Province; in every such Case, after the passing of this Act, suit may be brought for the same Cause of Action, and Recovery had in some of the Superior Courts of Pleas and Grand Sessions; and Judgment and Execution shall be entered as in other cases by this Act directed.

LIII. And be it further Enacted, by the Authority aforesaid, That all Writs and other Process, and all Suits, Appeals and Proceedings whatsoever, issued, granted or prosecuted, in the General Court, or either of the Supreme Courts, wherein Judgment hath been entered, or Decree made, shall and may be taken Cognizance of by the Superior Courts of the respective Districts wherein the Causes of Action did arise, or was suggested to have arisen; 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 Court; any Law or Usage to the contrary notwithstanding.

LIV. And be it further Enacted, by the Authority aforesaid, That where in the General Court, or any of the Supreme Courts, County or Inferior Courts, any Recognizance has been, or shall be forfeited or Fine imposed, and not hitherto paid; it shall be lawful for the Superior Court of the District in which such Recognizance was or shall be forfeited, or Fine imposed, to issue Execution for levying the same, after the Party shall be served with a Writ of Scire facias, and fails to shew sufficient Cause to the contrary; and in all Recognizances which shall hereafter be forfeited, or Fines which shall hereafter be imposed in any of the Superior Courts, the same Process shall issue, and the Forfeitures be levied in the same Manner, unless sufficient Cause be shewn on the Return of a scire facias, why such Forfeiture should be discharged, or mitigated by the Court.

LV. And whereas, many of the Prisons within this Province are insufficient for the Retention of Persons who commit capital and other Offences against his Majesty, his Peace and Government: Therefore, for the speedy Tryal of such Offenders; Be it Enacted by the Authority aforesaid, That the Governor or Commander in Chief for the Time being, so often as he shall find it necessary, is hereby impowered and authorized to issue a Commission of Oyer and Terminer, and General Gaol Delivery, under the Great Seal of the Province, directed to the Chief Justice, and the rest of the Justices of the said Courts, or any one or more of them, for the Tryal of such Offenders; and the Chief Justice, and other Justices so commissioned, after Receipt thereof, are hereby impowered, to hold a Court within the Time limited by such Commission, for the Tryal of every such Offender; and to hear and determine all Treasons, Murders, Burglaries, Felonies, Trespasses, Crimes and Misdemeanors, of what Nature or Kindsoever, wherewith such Offender or Offenders is or shall stand charged; and to give Judgment and award Execution.

LVI. And be it further Enacted, by the Authority aforesaid, That the Chief Justice or other Justices so commissioned, on receiving such Commission, shall order the Clerk of the Court for the District where such Court of Oyer and Terminer is to be held, to issue Writs of Venire-facias, directed to the Sheriff of the respective Counties within such District, to serve as Grand and Petit Jurors at such Court; which Writs the said Clerk

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is hereby impowered and required to issue, Six Days at least before the Day of holding every Court of Oyer and Terminer; to summon Six good and lawful Men as Grand-Jurors, and Six other good and lawful Men as Petit Jurors, being Freeholders, to appear and attend at such Court; which Persons so summoned as Grand-Jurors, or so many of them as shall appear, (together with other good and lawful Freeholders of the By-standers, if necessary, to add such to make a sufficient number of Grand-Jurors) shall be a Grand-Jury; and it shall be lawful for such Grand-Jury to enquire of, and present all Treasons, Factions and other Offences cognizable in the said Court, which shall have been committed or done within any County or Counties within such District: And the Freeholders so summoned as Petit-Jurors, or so many of them as shall appear, (not being challenged) together with so many other good and lawful Freeholders of the Bystanders, as shall make up the Number of Twelve, shall be, and are hereby declared to be a lawful Jury for the Tryal of any Person or Persons indicted of Treason, Felony, or other Crime or Misdemeanor, before the said Court of Oyer and Terminer: And if any Person so summoned to serve on the Grand or Petit Jury before such Court, shall fail to appear and attend, it shall be lawful for the said Court to fine every Person so failing Three Pounds; to the Use of the County whereof he is a Resident.

LVII. And whereas, as well the Dignity of the Courts as the Security of the Suitors, depends greatly on the Capacity and Probity of Lawyers practicing in the same: Be it Enacted, by the Authority aforesaid, and it is hereby Enacted, That no Person who hath not already obtained a License, shall hereafter be admitted as an Attorney to practice the Law, or a Councellor to plead in the Superior or Inferior Courts in this Province, unless he shall first have been regularly examined as to his Knowledge in Matters of Law, and the Practice of Courts, by some one of the Judges of the Superior Courts; and shall have obtained a Certificate under the Hand of such Judge, recommending him to the Governor or Commander in Chief for the Time being, as properly qualified to practice the Law, or plead as aforesaid, and shall likewise have obtained a Certificate from the Justices of the Inferior Court of the County wherein he shall reside, certifying him to be a Person of good Character; and no License shall hereafter be granted to any Person to practice the Law, or plead in any of the Courts of Law or Equity, until such Certificates shall be by him obtained. Provided, That nothing in this Act shall be construed to prevent the Governor or Commander in Chief for the Time, from granting a License to any Person who shall remove from some other Part of his Majesty's Dominions into this Province, without the Certificate of a County Court within the same, so as such Person shall bring Credentials from the Governor, or Judges of the Principal Courts of Justice of the Province, Colony, or Dominion, from which he shall so have removed, properly testifying his Character as aforesaid; any Thing herein contained to the contrary notwithstanding.

LVIII. Provided also, That nothing herein contained, shall be construed to debar any Lawyer called to the Degree of a Barrister in England, from practicing or pleading in any of the Courts of Judicature in this Province, in the same Manenr as might have been done before the passing of this Act.

LIX. And be it further Enacted, by the Authority aforesaid, That all and every Act and Acts heretofore made, wherein mention is made of, or Relation had to the Superior Court of Pleas and Grand Sessions, the same shall, and are hereby declared to relate to this Act; and the several Powers

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in the said Act shall operate and be exercised in as full and ample Manner, to all Intents and Purposes, as if the passing of this Act had preceded the passing of such Act or Acts.

LX. Provided always, That if his Majesty shall not give his Royal Allowance and Confirmation of this Act within the Space of Two Years after the Tenth Day of November next; that then, and from thenceforth, the same shall be null and void, and the several Powers and Authorities therein contained cease and determine; any Thing herein contained to the contrary notwithstanding.