|Pages 58-77||Pages 103-123|
|Sherriffs to be chosen in the commission.||Edit 1733 and 1752.|
|FORASMUCH as the commissioners of county courts are by the laws of this country answerable for the levyes and estreatments of each county of which the sherriffe is usually collector, Be it therefore enacted that none but one of the commissioners of each county shalbe sherriffe for the county; And further that the commissioners shall excercise the said office of sherriffe successively as they hold their places in commission, every one an whole yeare and noe longer: Provided that every such commissioner before he be admitted to take his oath give in good security for the due execution of his office and performance of the trust comitted to him and then his oath be administered unto him, And be it further enacted that noe undersherriffe shall execute the office of an undersherriffe in the same county above one yeare: Provided always, that the sherriffs of James Citty who are more imediate officers that any others in the general courts and the publique shalbe left to the governor's free choice: And further that if the governor, see cause for the better promoting any of his majesties special services it shall be left to his discretion to pass by any person in any other comission, and to give the place to those in the comision he shall think most meete to supply the exigent of the present occasion, But because the laws as well of England as this country prohibite the executing the office of sherriffe by any person two years together, the governor is earnestly desired by the assembly in any of his elections not to infringe those laws.||Purvis 34.|
Sheriffs to be chosen out of the commissioners of the peace.
To hold their office one year only.
So, of under-sheriffs.
|Sherriffs not makeing retornes.||Edit 1733 and 1752.|
|WHEREAS the sherriffs often through neglect, often for favor to the debtor omitt the serving the processes to them directed and makeing retornes thereof, according to law, by meanes whereof the courts are prolonged, justice delayed, and the parties by their attendance and expences very much indamaged, Bee it therefore enacted that every sherriffe fayling to make sufficient retorne (that is that the writt is executed and||Purvis 25.|
Sheriffs not mak'g returns of writs in time forfeit 1000lbs of tobacco.
|the name of the bayle taken) of any warrant to him directed three days at least before the day of the retorne of the writt in the general court, and two days before the county courts, shall be amerced one thousand pounds of tobacco, one halfe to the plaintiff if he sue for itt, and the other half to the county, Provided that the said plaintiff prove the delivery of the warrant to the sherriffe.||Proviso.|
|Sherriffs to take baile.||Edit. 1733 and 1752.|
|BEE it also hereby enacted that all sherriffs shall take sufficient bayle of all persons arrested, with the condition to bring forth the party arrested (a) and performe the award of the court, and if the sherriffe shall neglect to take sufficient bayle of the party arrested or otherwise consent to be the cause of his escape, then the said sherriffe shalbe liable to pay the award of the court himself, and shall also pay in case the consent to the escape be proved one thousand pounds of tobacco, one halfe to the publique the other halfe to the party greived, for his delay in recovering the debt, but if bayle be taken and the party appeare not to answer the suite, then judgment shalbe awarded against the bayle, Always provided, that the sherriffe or bayle shall if they desire it have an attachment against the estate of the party arrested and not appearing, And further that if the sherriffe or bayle shall at the next court after that to which the arrest was made, bring forth the body of the party soe arrested to answer the suite, then the sherriffe or bayle shalbe acquitted for the judgement passed against them.||Purvis 34.|
(See vol. 1, p. 448.)
Sheriff to take bail on arrests.
Consequence of failure, or of permitting an escape.
When sheriff or bail may have attachment against the principal.
How they may discharge themselves.
|Non est inventus.||Edit 1733 and 1752.|
| BEE it also enacted, that if any sherriffe shall retorne
non est inventus upon which an attachment hath
(See vol. 1, p. 466.)
|(a) The words "with the condition to bring forth the party arrested," omitted in Purv. and Chas. City MS which leave the sense incomplete. But they are inserted in Northb. MS.|
|upon a former act bin usually granted when perhaps neither the sherriffe nor his officer have bin at the house of the defendant to the great damage and disparagement of the defendant of having his goods attached, Bee it therefore enacted, that thenceforth the sherriffe or his officer shall declare upon one of their oathes that he hath bin at the house of the defendant, and hath there left a copy of his writ, before his retorne of non est inventus be admitted, and if he shall refuse to make such oath, then order to pass against him according to act for non retornes, but if the retorne be proved and allowed in court, then after thrice summoning the defendant by proclamation in court, an attachment shall issue against his estate retornable the court following, where if the defendant appear not to replevin the attachment, judgment shalbe granted to the plaintiff for his debt, being made evidently appear to the court that it is justly due to him.||Sheriff not to return non est inventus without oath
of having been at deft's. house and there left a copy.|
|Apprisement of goods.||Edit 1733 and 1752.|
|BEE it enacted for the equal apprisement of goods seized by execution, that the plaintiff and defendant shall chuse each of them two indifferent men for that purpose, and in case of disagreement the said fower or any three of them shall chuse an umpire, which umpire soe chosen shall be sworne by the next commissioner to apprise such goods indifferently, and his umpirage to be finall. And be it further enacted, that if plaintiff or defendant neglect to appoint apprisers within three days after execution is served, notice being given them by the sherriffe to whom the execution was directed, that then the sherriffe in such case of neglect shall choose and appoint apprizers either for plaintiff or defendant for apprizing the goods by him seized upon execution as aforesaid: And be it further enacted, that before such apprizement the sherriffe shall not remove the goods out of the possession of the plaintiff, and the surplusage, if any be retorned to him, but after apprizement made as aforesaid the property to rest in the sherriffe for the use of the creditor to whome the sherriffe shall give notice, that he may take them into his owne possession: And because there can||Purvis 36.|
Goods taken in execution, how appraised.
How goods disposed of, before & after appraisement.
Executions & returns to be recorded.
|noe averment against the record. It is further enacted that the sherriffe make
retorne of the execution to the clerk of that county that granted itt, by him to be entred upon
record under the order itt was issued upon, that soe the satisfaction as well as the judgment may
be authentickly proved if occasion require.
Whereas the act for the act for releife of poor prisoners hath contrary to the intent thereof bin extended to men of all capacities, and by that meanes an inconsiderable part of their estates, or at least unprofitable to him whose dependance is tobacco, according to agreement forced for satisfaction. Bee it therefore enacted that henceforth every debtor under execution for debt, shall be deteyened in prison untill he hath paid the debt in kind; but that a reall poor man laid under execution for a debt under one thousand pounds of tobacco shall still have liberty by part of their estate by some justice of the county indifferently assigned, and by appryzers summoned by the sherriffe and sworne equally to apprize the said estate, shall make payment to their creditor thereof, and redeem their persons.
|What persons shall have the benefit of the act for the relief
(See vol. 1, p. 294, 346, 454.
|Noe Commissioner, Clerk, or Sherriffe to be Attorneys in the courts where they officiate.||Edit. 1752.|
|BEE it enacted that neither commissioner sherriffe under sherriffe or clerk of any court within this colony shalbe permitted to plead as an attorney in any persons behalfe in the court wherein he offitiates, and the said commissioner, sherriffe, under sherriffe or clerke offending herein shall for every fault be fined one thousand pounds of tobacco, to the use of the county; Provided always that if any poore person not able to plead his owne cause shall request the court to assigne one of the commission to plead for him it shalbe lawfull for the court to grant itt, and for the commissioner to plead accordingly; but the councellors commissioner or commissioners soe pleading the poore mans cause not to give judgment herein: Provided also that any commissioner sherriffe, under sherriffe or clerke acting as general attorney for any person absent out of the country or county and negotiating their affaires, and soe lyable to be sued for their||Pur. 38 Edit 1733, p. 11.|
No commissioner, sheriff, under-sheriff or clk to plead as attorney in the c'rt where they officiate.
Exception in favor of poor person.
|imployers, such persons notwithstanding this act shall have liberty also to plead and prosecute in any cause that shall any wayes concern their said imployers.|
|WHEREAS frequent complaints are made by the people that they have noe notice of the time appointed for election of Burgesses and by that meanes are deprived of giving their voyces in the election of their owne representatives. Bee it enacted henceforward that the sherriffes of the respective countyes shall upon the receipt of the writts cause coppies thereof with the day appointed for the election indorsed to be sent to the minister or reader of every parish in their county, who is to read the same to the people two Sundays successively, both in the church and Chappell of ease to itt belonging (to the end that noe persons may pretend ignorance) and retorne the same to the sherriffe with his attestation subscribed that he hath published the same to the sherriffe with his attestation shalbe sufficient to discharge the sherriffe from blame: but if the sherriffe neglect sending copies as aforesaid then to be fined two thousand pounds of tobacco to the use of the county; and every ffreeman after such publication made neglecting to come and give his vote at the place appointed for his election shalbe amerced two hundred pounds of tobacco to the use of the county. And be it further enacted that if the sherriffe shall not before the day of his retorne make his due retorne of the writt with the names of the Burgesses indorsed into the secretaryes office at James Citty the said sherriffe soe neglecting shalbe fined two thousand pounds of tobacco to the publique.||Preamble.|
Writs for election of Burgesses, to be read in churches, by minister or reader & returned to sheriff.
Pen'ty on sheriff for neglect in sending copies of writs of election to minister.
On every freeman failing to vote.
On the sheriff for failing to return the writ
|Public levies to be first paid.||Edit. 1733 and 1752.|
|BEE it also enacted that no sherriffe shall, where he receives tobacco of any person indebted for his levies, and also for fees and other debts due to himself or any other officers, not paying the whole in kind||Purvis 39,|
|by which meanes for parte thereof distress must be made, shall presume to convert the tobacco in kind to his own or any other use, and force the country creditors to accept of the distresse, or stay for his debt; that all debts due to the publique be first paid and the tobacco in kind paid to the creditor of the publique whose reputation is by those evasions often villifyed and that the sherriffe making default herein shalbe fined ten thousand pounds of tobacco to the use of the publique upon proofe thereof made in any court of record in the county.||Debts due to the public to have a preference.|
|The Sherriffe upon the instance of the Treasurer or Deputy to collect the quittrents.||Edit. 1752.|
|AND be it further enacted that the sherriffe being his majestie's imediate officer shall upon the instance of his majestie's treasurer or his deputy here, be compelled to receive all such quitt rents as the said treasurer or his deputy shall give him order to receive in his county, and that the said quitt rents be paid as the levyes in the direct specie of tobacco or mony, and that no particular ffees or debts be preferred before them, under like penalty as for the payment of other debts before the levyes.||Pur. 40. Edit. 1733, p. 11.|
Quitrents to be collected sheriff's & paid in the specie of tobacco or money.
|Lists of Tythables how to be taken.||Edi 1733 and 1752.|
|WHEREAS the fraud of sherriffs in bringing in the lysts of the tythables hath very much augmented the taxes of the country. Bee it enacted for the better discovery of the number of tythables each county shalbe by the court appointed to take the lists of the tythables to be brought or sent in under the hand of the master of every family of the names and number of the tythables he hath in his family, and if he bring in a false lyst the said master shall pay treble duties for every person see by him concealed. And be it further enacted that the said||Purvis 41.|
Each county to be divided into precincts, for the taking of lists of tithables.
|commissioner give publique notice in writing to be read and sett up att the doore of the Church or Chappell of ease of the precinctts he is to take account off, and of the day he will receive them, provided the day before the tenth of June at furthest at which tyme every person neglecting to bring in his lyst as aforesaid shalbe adjudged a concealer and pay accordingly, and every commissioner fayling in giveing notice, neglecting to take the lyst, conniveing at others concealment, or not giving a true lyst of his owne tythables shall also pay treble duties as aforesaid; And be it further enacted that every commissioners in August court following shall deliver the accompt soe taken by him and the subscriptions of several masters of families to the clerke of the county courts, who shall retorne an exact lyst of the families to the clerk of the assembly the first or second day of every September general court.||Penalty for concealing.|
Lists, when & where to be returned.
|What persons are Tythable.||Edit. 1733 and 1752.|
|WHEREAS severall disputes have been made of what persons were tytheables: It is hereby enacted and declared that all male persons, of what age soever imported into this country shalbe brought into the lysts and by lyable to the payment of all taxes, and all negros male and female being imported shalbe accompted tythable, and all Indian servants male or female however procured being adjudged sixteen years of age shalbe likewise tythable from which none shalbe accompted tythable, and all Indian servants male or female however procured being adjudged sixteen years of age shalbe likewise tythable from which none shalbe exempted, but such christians only as are either native of this country, or are imported free by their parents or other who shall not be lyable to the payment of levyes until they be sixteen years of age, or such others as by particular acts of assembly are exempted.||Purvis 41.|
Persons tithable −− all male persons, negroes male or female, Indian servants male or female 16 years old.
|Councellors and ten persons exempted out of the levyes.||Edit 1733 and 1752.|
|BEE it enacted that each councellor of state of this country shalbe freely exempted from all publique charges and taxes for themselves and ten of their family,||Purvis 42,|
Members of council & ten of their family exempted from taxes.
|the minister and church duties excepted. And further that all ministers officiating in any cure of this country shall for their attendance on the general courts and assembly be exempted themselves and six of their family from paying any publique taxes, And further that all persons that came into this country at the last coming in of Sir Thomas Yates* shall have their owne persons exempted from payment of any publique taxes, church duties excepted, and also from their personal service in the warres.||(See vol. 1, p. 228, 445.)|
Ministers & 6 of their family.
Also those coming in with Sir Thos. Gates.
|Artificers not planting Tobacco freed from payment of the levyes.||Edit. 1733 and 1752.|
|AND whereas all persons artificers & others are forced to neglect their trades, and to plant tobacco merely for the payment of the levyes: Bee it enacted that what artificer or handycrafts man soever will employ himselfe and servants only about their trades, and not plant any tobacco at all; every such artificer and handicraftsman soe following his trade, and not planting tobacco, either by himselfe or servants, shall for his encouragement be exempted from paying any levies either for himselfe or servants for the terme of three years except it be ministers dues and church duties: Provided always that if any person clayming the benefitt of this act shall directly or indirectly at home or abroad plant or tend, or cause to be planted or tended any tobacco, contrary to the intent of this act, or hire out his servant or servants to others to plant or tend tobacco, he shall be censured to pay double levyes for himselfe and all his tythables to the use of the county.||Purvis 42.|
Artificers refraining from planting tobacco & pursuing their trades exemp'd from taxes for three years.
Pen'ty of such if they plant tobacco contrary to this act.
|Councellars to raise a levye.||Edit 1733 and 1752.|
|WHEREAS the necessary charge of the country doth inforce the raysing of an annuall levye, which being commonly done by an assembly, the charge||Purvis 43.|
|* 'Yates' in Purvis and Northb. MS. but a mistake, it should be 'Gates' See vol. 1, p.124. 172, 263, 460.|
|of which doth most times equall itt, if not exceed all other taxes of the country. Bee it therefore enacted that the governor and councell in September 1662, shall have power to raise and proportion a levye to defray the country debts and salarys allowed by the assembly and such other debts also as they shall find justly and necessarily due according to the number of tythables: Provided the whole amount not to more than twenty pounds of tobacco per poll, and this act to continue for three yeares unles some occasion present in the meane time of calling an assembly: And that the levye may be truly proportioned, Bee it enacted that every clerke of a county court transmitt the certificate of the number of tythables in his county to the secretaryes office in every September court.||Gov & council authorised to apportion and lay a levy during the
recess of the assembly to save the expense of their session.|
Clks of courts to transmit lists tithables annually.
|Noe arrests to be made on Sabbath days.||Edit 1733 and 1752.|
|WHEREAS it hath beene the frequent practices of sherriffe and their officers for their owne ease and benefitt to repaire to the churches and other places of publique meetings on purpose to serve warrants and executions and other writts by which meanes men in danger of arrest have bin deterred from the service of God and the King. Be it enacted that noe sherriffe nor his officer shall henceforth execute any writt or warrant upon any person or persons either upon the Sabbathday or upon the day of humiliation for the death of the late king of blessed memory, or upon the days appointed for thanksgiving for his majesties happy inauguration, and for the deliverances of this country from the two bloody massacres, nor at the times of generall muster or election of burgesses: Provided always that it shall and may be lawfull for the sherriffe or any other officer to apprehend and carry to prison any person or persons for riotts ffelony or suspision of ffelony or escape out of prison when under execution, upon any day at any place, any thing in this act to the contrary notwithstanding. (a)||Purvis 43.|
(See vol. 1, p. 457.)
No arrests on Sabbaths or certain holidays, or at musters or election of burgesses.
|(a) The words "any thing in this act to the contrary notwithstanding," in Purvis, but omitted in Northumberland MS.|
|Reward for killing of Wolves.||Edit. 1733 and 1752.|
|WHEREAS great complaint is made of the frequent & many injuryes done by wolves to the cattle & hogs of several inhabitants of this country. It is therefore enacted that for the incouragement of those that will make itt their business to kill and destroy them, that they shalbe paid by the county in which they are killed, for every wolfe destroyed by pitts, traps or otherwise, two hundred pounds of tobacco, provided he make proofe before the next commissioner how the wolfe was killed, and brings his head, and take from the said commissioner a certificate thereof, which being produced to the court when they are proportioning the levye shalbe suffitient to have the said reward raised upon the county, and to be paid to such persons, as it is justly due.||Purvis 44.|
[See vol 1, p. 199, 328, 456, 457.]
Reward for killing wolves payable by the county.
|Commissioners to take security of the Sherriffes.||Edit. 1733 and 1752.|
|BEE it also enacted that the commissioners of every county shalbe answereable to the publique for all levyes laid upon their county by act of assembly, and for the sherriffes performance of his place, and in regard thereof are hereby impowered before the admission of any sherriffe into his office to take such security of him as they shall think fitt and sufficient to save themselves harmlesse for the receiving and discharging all publique duties, whither quitt rents levyes or officers ffees committed to his charge of collection and for the due performance of his office; Provided that no commissioner shalbe lyable but such as were of the commission with the defect was made.||Purvis 45.|
[See vol. 1, p. 259, 284, 442, 445.]
Justices liable for levies imposed by act of assembly, & authorised to take good security of the sheriffs.
|Judgment before Commissioners.||Edit. 1752.|
|BEE it enacted that the voluntary confession and acknowledgment of a debt by the debtor under hand and seale before two commissioners of which||Purv. 45, and edit. 1733.|
[See vol. 1, p. 304, 447, 455.]
|one of the quorum shall be accompted in law of the nature and quality of a judgment, the same commissioners attesting the same under their hands, and so certifying it to the clerk of the county court to enter it upon record, upon which writing so acknowledged, attested and recorded, execution shall issue, in case the debt be not paid, as if judgment had bin granted for the same in open court, provided that if noe execution issue within a yeare after such acknowledgment, then a Scire Facias shall issue before any writt of execution shall issue forth.||Confession of a debt before two justices, equal to a
But a scire facias necessary, if no execution within a year.
|Persons removeing into the Bay.||Edit. 1752.|
|FOR avoiding of creditors charges and troubles in recovering their debts by reason of diverse persons removing themselves from their places where they contracted their debts into remote counties, Bee it enacted that noe person whatsoever shall remove out of the county where he dwells unles he first sett up his name at the doore of the parish church or chappell where he dwells, three Sundays together, and in the same expresse his intent of leaving the country, and certifie the place he is about to remove to, and take certificate thereof from the minister or reader of the said church or chappell and the churchwardens of the parish to the clerke of the county court, who shall grant him a lycence thereupon to depart, provided always that if the said person soe removing pay not his debts contracted before his removing according to the tenor of the specialties by which they are due, It shalbe lawful for any of his creditors by a warrant from the secretaryes office to bring the debtor personally before the governor or any of the councill for what value soever the debt be off, and there put in suffitient security for performance of his obligation according to the tenor thereof (in case the day of payment be not past, any restriction in any other act to the contrary notwithstanding, and then to take out execution against his body or estate for satisfaction of the debt. And be it further enacted that if any person or persons shall before or after certificate obtained as aforesaid, remove or transport any cattle out of the county he||Pur. 46 and Edi. 1733.|
[See vol. 1, p. 465.]
Persons removing out of the county to give previous notice.
A debtor removing may be arrested by warrant from the secretarys office, & bro't before the governor, or any of the council.
If the money not due, he must give security, if it be execution may issue.
Penalty for removing cattle without notice and recording the ear marks.
|dwelled in without notice given to fower of the nearest inhabitants (who are hereby required to take espetiall notice of the eare marke and colour of the cattle to be removed) and make a lyst of them and their markes, and carry the same subscribed by the said viewers to the clerke of the county court to be recorded, shall upon lawfull conviction forfeit for every beast transported contrary to the tenour of this act one thousand pounds of tobacco, one halfe to the publique, and the other halfe to him that shall make the complaint against the party soe offending. And if any merchant, marryner, or other person whatsoever shall transport any person or persons out of his county, without certificate as aforesaid, the said merchant, marryner, or other person soe offending, shall be lyable to the payment of all the debts and engagements of the party transported, being due at the time of his removeall.||[Vol. I, p. 200, 243, 437.]|
All persons removing a debtor liable for his debts.]
|English weights and measures.||Edit. 1752.|
|WHEREAS dayly experience sheweth that much fraud and deceit is practised in this colony by false weights and measures, for prevention whereof, Be it enacted that noe inhabitant, or trader hither, shall buy or sell, or otherwise make sue of in trading, any other weights or measures than are used and made according to the statue of 12 Henry, VII, cap. V. (a) in that case provided: and for discovery of abuses, Bee it further enacted that the commissioners of every county, doe provide at the charge of the county, sealed weights of halfe hundred, quarternes, (b) halfe quartnernes, [quarternes,] seaven pounds, fower pounds, two pounds, one pound; measures of ell and yard, of bushell, halfe bushell, peck, and gallon, of Winchester measure; gallon, pottle, quart, pint, halfe pint, of wine measure out of England; and that the said weights and measures||Pur. 47 & Edi. 1733.|
Buying and selling by other wts. and measures than the English standard prohobited.
Wts. & measures to be provided at the charge of each county.
|(a) For the words '12 Henry VII. chap. V' there is a blank in Purvis and Northb. MS. but they are inserted in the edition of 1733.|
|(b) 'Quarters' in edit. of 1733, but 'quarternes' in the Northb. MS. and 'quarterns' in Purvis.|
|be kept by the first of every commission at his house, and with them a burnt marke of (C. V.) (a) and a stamp for leaden (b) weights and pewter potts, whither all persons not using weights and measures brought out of England, and sealed there shall bringe all their barrells (which are to containe five bushells) and other measures to be sealed, and their still yards to be tryed; and all persons selling by other weights and measures not sealed and tryed as aforesaid, shall forfeite one thousand pounds of tobacco, the one halfe to the publique, the other halfe to the party that shall make his complaint; and if the commissioners shall make default of the providing such weights, measures, seales, (c) and stamps as by this act they are injoined by the first of December 1663, the said commissioners shalbe fined five thousand pounds of tobacco to the use of the publique.||Pen'ty. for selling by other wts. and measures.|
On justcs. for not providing them by the 1st of December, 1663.
|County Courts to grant probatts and administrations.||Edit. 1733 and 1752.|
|BEE it enacted that the county courts shalbe impowred to grant probatts of wills and administrations upon the estates, of persons dying intestate to take security and receive the inventoryes of the said estate; Provided that the clerke of the county courts when he sends or carryes the said probatts or comissions of administrations to be signed, doe then alsoe certifye into the secretaryes office the name of the testator or party deceased, the executor or administrator and their security, the county and parish where they dwell, and the court wherein the administration is granted to the end that strangers and other creditors interested (d) in the estate may be better enabled to find out the records in which the account of the estate is entered, and be informed how they may come by their just dues.||Purvis 48|
[See vol. 1, p. 302, 447.
County courts authorised to grant probate wills & letters of administration.
Duty of clerk in certifying to the secretary's office the name of the testator, executor, &c.
|(a) For the letters '(C. V.)' there is a blank in Purvis and edition of 1733, but they are inserted in Northb. MS.−−But quære, if it should not be '(V. G.) see vol. 1, p. 170.|
|(b) 'London' in Northb. MS. but 'leaden' in Purvis and edition 1733.|
|(c) 'Scales' in Purvis and edition 1733, but seales' in Northumberland MS.|
|(d) 'Invested' in Purvis but 'interested' in Northb. MS.|
|Administrations to whome to be granted.||Edit. 1733 and 1752.|
|WHEREAS commissions of administration are sodainly obtained, and the estates as sodainly disposed of under pretense of greatest creditor, or of next of kin, whereby oftentimes they that really are soe, are the one defrauded of his just debt, and the other debarred of his right and interest, before either can have notice of the party deceased: Bee it therefore enacted that noe administration be granted untill nine months after the partyes decease except to his widdow or child, and then to be imediately granted the said widdow or child bringing in sufficient security for performing all things the law requires, and saveing the courte harmelesse: And be it further enacted that in case the widdow or child doe administer, the estate shall be inventoryed and apprizement made by fower men appointed by the court, and sworne by a justice of court as formerly, which inventory and apprizement shalby the said widdow or child be brought into the next court held in that county unles the court for reasons shewed them may think fitt to grant liberty to bring it in the court following. (a) But in case the decedent dye without widdow or child, then it is enacted that the estate for the better improvement thereof, be by the court sold at an outcry and the purchasers all putting in security and acknowledging judgments for their debt which by the court shalbe assigned to the severall creditors of the decedent and paid according to the priority in law and the surplusage (if any) remayning to be delivered to the next kinsman of the decedent if he appears, and if none prove himselfe such within three years, then the court to give an accompt of the said surplusage to the assembly who are to dispose of the same to the use of the countrey (b) allowing to the court or whome they intrust with the management of itt for his reasonable costs and paynes.||Purvis 48.|
(See vol. 1, p. 479.)
No admin'tion to be granted till 9 months after the party's decease, except to the widow or child
Estate, when and how appraised.
Where no wife or child;
Debts, how paid, & estate how disposed of.
|(a) The word 'following' omitted in Purvis, but inserted in Northb. MS.|
|(b) 'County' in Purvis,'country' in Northb. MS.|
| And when the widdow or child administer, the surplusage, after debts
paid and the funeral charge according to the quality of the person allowed for shalbe equally
devided between the widdow and children, vizt, one full third of the personal estate to the
widdow, and the other two thirds among the children, if any of which dye before it come to age
his proportion to be equally (a) devided among the surviving children.
And whereas it hath bin the frequent evill practise of administrators as soone as they have obtayned an order to administer to act as administrator by virtue of that order, without giving security or taking out their commissions soe that the estate being imbezelled away noe account can be given thereof, Bee it therefore enacted that whosoever pretends to administer upon any estate shall bring to the court sufficient security before the order shall be granted, and an order thus obtayned legally by giveing such security to be truly accomptable to bring in a true inventory and to perform such things as the administrators by law are injoyned shall not at any time be reversed, unles the party that obtained the same dye before he hath given an account of the estate, and obtayned his quietus, in which case the court is impowered to grant the administration of that estate soe not accompted for, to some other person who may by virtue thereoff call his heires, executors, or administrators of the former administrator to an account who shall pay out of the said deceased administrators estate, all such debts as shalbe found due to the estate he administered upon in the first place.
|After paym't of debts the surplus to go, one-third to the widow &
the remainder to the child'n equally, or their representatives.|
No person to act as adm'or with't giving security.
When the admin'r dies before full adm'n another may be appointed.
|CONCERNING Orphants estates Bee it enacted that all wills and testaments be firme and inviolable, unles the executors or overseers doe refuse to execute the trust reposed in them by the testator in which case the court may appoint others to act according||Edit. 1733 and 1752.|
[ See vol. 1, p. 416, 480.
|(a) The word 'equally' omitted in Purvis but inserted in Northumberland MS.|
|to the will, but if the said will be soe made that noe person will undertake the managing
of the estate, or education of the orphants according to the tenor of it, then that the estate by
appointment of the court shalbe managed according to the rules sett downe for the ordering the
estate of persons intestate, as followeth:
First, that noe account be allowed for dyett, cloaths, phisick, or else against any orphants estate, but that to be educated and provided for by the interest of the estate, and increase of their stock according to the proportion of their estates, if it will bear it; but if the estate be so mean and inconsiderable, that it will not extend to a free education, then it is enacted that such orphants shalbe bound apprentices to some handycraft trade untill one & twenty years of age, except some kinsman or relation will maintain them for the interest of the small estate they have, without diminution of the principall which whether greate or small always to be delivered to the orphants at the years appointed by the law.
That all cattle, horses and sheep be retorned in kind by the guardian according to age and number, according as he received them; and because severall had before the ffirst making of this act estates of orphants in their hands in which they kept for the male increase, and giveing the yearly accompt of the augmentation or declination of the orphants stock (which by the carelesnes or wickedness of the guardians was usually consumed before they came to age) and disputes thereupon arise in several courts how such persons should be proceeded with, and accompt of orphants estates how to be given them. it is hereby declared that all persons possessed of orphants stocks before the first making this act, shalbe bound to deliver to the orphants when he comes to age, such and soe many of any kind as he was possest of when he gave his accompt to the next orphants court succeeding the publication thereof.
|Ex'ors refus'g to qualify, adm'n with the will annexed may be
But if no person will execute the will, then the estate to be managed as in case of intestate.
Orphans to be educated on the interest of their estate, but if too small for that purpose, to be bound out, unless some fr'd will k'p them on the interest.
Princp'l to remain unimpaired.
Cattle, horses & sheep to be retu'nd by the guard'n to his ward, according to age and number as received by the guardian
|That all plate and mony be preserved and delivered in kind according to the weight and quantity; that other household stuffe and lumber be apprized in mony, and the value thereof paid by the guardian to the orphant when he comes to age, in the country commodity at the prize current as it shall be worthy at the time, in the place where the orphants estate is managed.||Plate & money to be returned in kind according to weight.|
Housh'd stuff by appraised value.
| That the court take able and sufficient security for orphants
estates, and inquire yearely of the security; and if the court see cause, to have it changed and
called in and places as the court shall think fitt; the court also to inquire whither orphants be
kept maintained and educated according to their estates, and if they find any notorious defects
to remove the orphants to other guardians; also for those that are bound apprentices to change
their masters if they use them rigorously, or neglect to teach them his trade.
||Courts to take sufficient security for orphans' estates and to
enquire into the sufficiency yearly; to change it if necessary.|
General power & duty as to guardians, orphans & apprentices.
|*That such orphants as are not bound apprentices shall after seventeen years of age have the produce of their owne labour and industry, and liberty to dispose thereof at their discretion, the guardians still allowing them their maintenance for the interest of their estate.*||Orphans, not bound apprentices, to have produce of their own labor after 17 years of age.|
|That noe more be allowed to guardians for collecting of debts due to any estate than ten in the hundred, the usuall allowance of merchants to their ffactors and attorneys.||Commissions allowed to guardians.|
|That thirty pounds of tobacco per day be allowed to each apprizer for apprizements of any estate if they will take itt and noe more.||Allowance to appraisers of estates.|
|That no allowances be made by the court of excessive ffuneral expenses, but a regulation thereof be made, according to the proportion of the estate, and the quality of the person.||Fun'l charges not to be excessive.|
|Orphants Lands not to be aliened.||Edit. 1752.|
| BEE it also enacted for the future benefitt of all orphants
that the several county courts doe take into their serious consideration and care that the lands
in the county belonging to any orphants be not aliened sold or taken up as deserted land by any
person during the minority of the orphant, and that the guardian or overseers of any orphants doe
not let, set, or farme out any land belonging to any orphant, for longer terme,
||Purvis 52 and Edit. 1733.|
[See vol. 1, p. 443.]
County courts to protect the lands of orph's during their minority.
Their guardians not to rent it longer than their attainm't of full age.
|* The entire clause between the asterisks, *−−* omitted in Purvis, but inserted in Northb. MS.-See vol. 1, p. 416, where there is a similar provision in the act from which this was taken.|
|then till the orphant be at age, and that an espetiall care be had that the tenant shall improve the plantation by planting an orchard and building a good house, and that the tenant shalbe bound to maintaine a good fence about the orchard, and keep the house in sufficient repaire and leave it tenantable at the surrender, and that provision be made in the lease for preventing all waste of timber, or imploying it to any other use than the use of the plantation.||Covenat. as to planting orchards, building houses, &c. to be inserted in the lease.|
|Grants of Land.||Edit 1733 and 1752.|
|BEE it hereby enacted that any person or persons clayming land as due by importation of servants shall first prove their title or just right before the governor and councell, or produce certificate from the county court to the secretarys office before any survey be made or grant admitted it being unreasonable that others furnisht with rights, should be debarred, by pretence of survey which in itselfe is noe title.||Purvis 52.|
[See vol. I, p. 274, 444.
How persons claiming lands by importation rights must prove their title.
|Deserted Lands.||Edit 1733 and 1752.|
|BEE it also enacted, that no pattent of land shall hereafter passe upon pretence that the land is deserted for want of planting within the time of three years unles proofe thereof be made before the governor and councell, and an order obtained from them for the pattenting thereof, neither shall the first petitioner for any deserted land be denyed haveing the first grant, he making his rights appeare when he petitions for the land. And whereas the former act concerning deserted land reserved to the first taker up his rights to take up land in another place; It is hereby enacted that in regard he hath had the benefitts of his rights held the land in possession, might make use of the timber without contradiction, yet neither pays the king any rents, nor suffers him to admitt any new tenant, that the rights as well as the lands shall be forfeited, and the grantee made incapable of using either of them afterwards: Provided that any person having taken up land deserted before the making of this act in Novem. 1652, shall not by vertue of this act be outed of possession.||Purvis 53.|
[See vol.I, p.291, 468.]
Lapsed land not to be entered without an order from the governor and council.
Former law authorising first patentee to take up other lands repealed.
|Seating upon other mens dividents.||Purvis 53.|
|WHEREAS diverse suites have risen about seating ignorantly upon other mens lands, for deciding the same, Be it enacted that if any person whatsoever hath built or seated upon any land supposed his owne, but proving by a just survey to belong to another the charge of such building seating and clearing shall by twelve men upon their oaths be indifferently valued, and the consideration by the said twelve men soe adjudged shalbe paid by the owner of the land to the first seater that was at the charge, but if that shall amount to more than the said owner is willing to disburse, then the said twelve men shall make a valuation of what the land was worth before the seating thereof, which the seater shall accordingly pay to the true owner, Provided always that noe consideration shalbe allowed for building or cleering to any person that shall obstinately persist after lawfull warning given him to desist.||[See vol. I, p. 260, 443.]|
A person who has built upon lands supposed to be his own, but upon survey, prove to be anothers shall be allowed for his improvements.
But if they amount to more than the owner is willing to give, the seater must purchase the land.
|Not to shoote or range upon other mens lands.||Edit. 1733 and 1752.|
|WHEREAS the rights and interests of the inhabitants are very much infringed by hunting and shooting of diverse men upon their neighbors dividends contrary to the priviledges granted them by their pattents, whereby many injuryes doe dayly happen to the owners of the said land, Be it therefore enacted that if any planter or other shall hunte or shoote within the lymitts of anothers dividend without leave first obteyned from the proprietor, he or they soe offending shall forfeit for every such trespasse fower hundred pounds of tobacco, one halfe to the owner of the land, the other to publique uses, notwithstanding it shalbe lawfull for any person or persons to hunt or shoot upon any dividend of land not planted or seated though taken up without restraint or penalty; Provided also that it shalbe lawfull for any person having shott any game without the lymitts of another mans land to persue the same into any dividend, and freely to carry away the same, as also to seake or fetch his||Purvis 53.|
[See vol. I, p. 437.]
Penalty for shooting upon othere mens' lands, without leave.
Not to prohibit persons who h'e shot game from pursuing it.
| owne cattle and hoggs from off any mans land, ffirst giving notice to the owner of the
land of his intent and of the time he intends to stay upon itt, soe the said owner may if he think
fitt send one to see what cattle or hoggs he drives away, Provided that the governor may
commissionate some gantlemen of the colony to lycence any person to hunt wild hoggs upon any mans
plantation not being ffenced.
||Or to hunt his own cattle & hogs, giving previous notice to the
owner of the land.|
Gov. may license some gentlemen to hunt w'd hogs on lands not fenced.
|Lands five years in possession.||Edit. 1733 and 1752.|
|WHEREAS sundry suites and controversies have bin, and dayly doe arise about claymes and titles to land to the great impoverishing of diverse persons, for remedy whereof, and for the better establishing the inhabitants in their rights and possessions hereafter. Be it enacted that all persons whatsoever that have or doe pretend any title to any land, shall prosecute their claymes before the said land hath bin peaceably injoyed five yeares, otherwise it shalbe a good plea in barre for the possessor of such land claymed or possessed to affirme he hath had peaceable possession without clayme by commencement or prosecution of suite full five yeares, proof whereof shalbe a sufficient confirmation to the possessor and shall conclude the clayme and title of the pretender, and this act to extend to all such as have not presented their titles within five years since the sixth day of October, 1646; always provided that the lymitation of five years in this act expressed shall not barr orphants, nor women (a) under covert, nor persons out of the country, nor persons of unsound mind, but that the said orphants shall have five years after they be at age, women five years free from coverture, (vizt.) if she marry againe before her five years are expired, and her husband omitt to make clayme, his omission shalbe a good bar against him, but if the woman survive, shee shall have soe lone time allowed her to clayme in as will make up the first tyme of her freedome five years; persons of||Purvis 55.|
[See vol. 1, p. 451.
Suits for land to be commenced within 5 years, or the claimant forever barred.
Actg to operate from 6th of October, 1646,
Proviso, in favor of orphans femes covert, persons out of the country or of unsound mind.
|(a) 'Widows' in Purvis,'women' in Northumberland MS.|
|unsound minds five years after their recovery from their impotence, persons out of the country, five yeares after their arrivall in the country; Provided they come in within two years after the title to the land became due; in which times if they clayme not as aforesaid to be utterly barred for ever; ffor otherwise the expectation of heires out of England where there is none borne here, must in a short time leave the greatest part of the county unseated and unpeopled, noe man knowing how or of whome either to purchase or take lease.|
|Against ffraudulent conveyances.||Edit. 1733 and 1752.|
| BEE it enacted and confirmed that noe person or persons
whatsoever shall passe over by conveyance or otherwise any part of his estate whither lands, goods
or cattle, whereby his creditors not having notice thereof might be defrauded of their just debts,
unles such conveyances or other deeds be acknowledged before the governor and councell at the
general court, or before the justices at the county courts, and there registered in a booke for
the purpose within six months after such alienation, and whosoever shall make over or alienate any
part of his estate otherwise then is here expressed the same shall not be accompted valid in law,
nor shall it bar any creditor from (a) seizing the same by law for satisfaction of
his debt, the property of the estate not being legally vested in any but the first vendour.
And it is further enacted that any conveyance made and acknowledged, and recorded, in which
time the creditor or former purchaser may shew for what cause the said conveyance is to be
accompted fraudulent, but if none appeare within the said fower months after the first
acknowledgment in court, then the sale shall for
[See vol. 1, p. 248, 417, 472.
No estate in lands, goods, or cattle to pass, unless the conveyance be acknowledged in court, & registered within six months.
Alienations otherwise made not valid, and property may be seized by creditors.
Nor shall such conveyance & acknowledgment be good against a creditor or former purchaser till 4 months after the acknowm't and recording.
|(a) 'By' in Purvis, 'from' in Northumberland MS.|
|ever after be good against all other claymers or pretenders whatever unles such as pretend to overthrough the first sellers titles whome only five years possession can barr, Provided that this act shall not extend to such persons who for satisfaction of just debts shall make a bill of sale of their estates, or any part thereof, and deliver it bona fide into the possession of the creditor, but that such act shalbe good and valid to all intents and purposes, this act being made only to prevent fraud and deceite.||Not to extend to bills of sale, bona fide made, and possession delivered, for securing creditors.|
|Quitt rents how to be paid.||Edit. 1733 and 1752.|
|WHEREAS his majestie hath by his commission appointed a treasurer to receive the quitt rents and other ffees and proffitts due to his majesty, and the payment of quittrents being due in money which wee being destitute of coyne cannot procure, Be it enacted that those persons that cannot procure mony shall pay their said rents in tobacco at pence per pound to such collector or collectors as by his majesty his treasurer shalbe appointed, and that the country paying the rents double the next two years shall be acquitted from all arrears by assent of the honorable Sir Wm. Berkeley who is authorised by the treasurer to make composition.||Purvis 57.|
[See vol. 1, p. 280, 306-7, 316, 351.
Quit-rents, at what rate payable in tobacco.
|Surveighors of Land.||Edit. 1733 and 1752.|
|BEE it enacted, that surveyors of land shall demand noe more than twenty pounds of tobacco for measuring one hundred acres of land if the parcell exceed five hundred acres, but if under to be allowed one hundred pounds of tobacco, and for the same deliver an exact plott of each parcell surveyed and measured; and if any surveyor upon reasonable demand shall refuse to measure the divident for any person whatsoever for the consideration and satisfaction aforesaid, such surveyghor shall be lyable to the censure of the court in the county where he liveth, and if any surveyor shall be desired to goe further from his place of residence, then he can retorne in one day, the said surveighor||Purvis 57.|
[See vol. 1, p. 335, 452.]
To deliver a plat of each survey.
Penalty for refusing to survey for the legal fees.
Allowance for every days absence from home.
|shall have the allowance of thirty pounds of tobacco per day for every days absence from his dwelling, and if his passage cannot be but by water, then such persons as shall imploy him shall provide for his transport out and home, Provided noe pay to be received before the plott delivered.||His transportation by water to be provided by the person employing him.|
|Land to be plainely marked and bounded.||Edit. 1733 and 1752.|
|WHEREAS many contentious suites doe arise about titles to lands occasioned much through the fraudulent and underhandealing of surveyghors who frequently make sale of the surveighs by them made in the behalfe of one person to another, whereby oftentimes he that had the first and justest right is unjustly deprived of his due; for prevention whereof for the future, Be it enacted and ordeyned that noe surveyors of land shall give a plott of any land surveighed by him unto any other person whatsoever untill six months after such plott is drawne according to its surveigh and that all lands surveighed shalbe att the surveying thereof plainly marked and bounded for all persons to take notice off, that none may by the ignorance of the bounds intrench upon anothers right; and the person offending either in giving out surveighs contrary to this act, or not suffitient marking his bounds to forfeite five hundred pounds of tobacco for every hundred acres the surveigh shalbe given of, to the use of the county.||Purvis 58.|
[See vol. 1, p. 518.
No plat to be delivered by a surveyor in less time than six months.
Land to be plainly mark'd and bounded.
|What fences shalbe sufficient.||Edi. 1733 and 1752.|
|BEE it also enacted and confirmed by this present grand assembly that every planter shall make a sufficient fence about his cleared ground at least fower foote and a halfe high, which if he shall be deficient in, what trespasse or damage soever he shall susteyne by hoggs, goats or cattle shalbe his owne loss and detriment, and also if it shall happen that any person shall hunt any of the said horses, mares, hoggs, goates or cattle that shall soe offend and doe them harme he shall||[Vol. 1, p. 200, 243, 437.|
Fences to be 4 1-2 feet high: otherwise the owner of the land to have no redress for trespasses & liable to the owner of the
|make satisfaction for any of them that shall be soe hurt to the owners of them to be recovered within any court of justice within the colony. It is further enacted that where any mares, cattle, or hoggs endamage any person for want of such fence as aforesaid, and the party damnified doe willingly kill or otherwise hurt soe as the cattle, hoggs, horses or mares doe dye of such hurt, whither by doggs sett upon them or otherwise, in such case the owner of the ground shall not only be lyable to satisfye double the value of such horses, mares, hoggs or cattle soe killed to the owners of them; And further be it enacted that where the fence shalbe adjudged sufficient (vizt.) fower foote and a halfe high, and close downe to the bottom that in case damage or trespasse be then done or committed to any person having such fences by either horses, mares hoggs, goats or any other cattle whatsoever the owners of such horses, cattle, mares, &c. shalbe lyable to make satisfaction for their trespasse and damage to the person injuryed in case the ffence be found by two honest men appointed by the next commissioner to be sufficient.||beasts for injuring them; and for killing them to pay double the
If the fence be sufficient, the owner of the land to have satisfaction of the trespass.
How fences to be viewed.
|Bounds of lands to be every fower years renewed by the view of the neighbours.||Edit. 1733 and 1752.|
|WHEREAS many contentious suites are dayly incited and stirred up about the bounds of land for which noe remedy hath yett bin provided, the ffifty seaventh act prohibiting resurveighs not applying the expected remedies, for if the surveighs be just yet the surveighors being for the most part careles of seeing the trees marked, or the owners never renewing them, in a small time the chopps being growne up, or the trees fallen, the bounds become as uncertaine as at first, and upon a new surveigh the least variation of a compasse alters the scituation of a whole neighbourhood and deprives many persons of houses, orchards and all to their infinite losse and trouble; for prevention whereof,||Purvis 59.|
|Bee it enacted that within twelve months after this act, all the inhabitants of every neck and tract of land adjoining shall goe in procession and see the marked trees of every mans land in those precincts to be renewed, and the same course to be taken once every fower years, by which meanes the inconvenience of clandestine surveigh will be taken away, and the bounds wilbe soe generally known and the marks soe fresh that noe alteration can be made afterwards, and be it further enacted that the bounds by the consent of the present proprietors, being once thus setled shall conclude the said proprietors, and all others clayming from or under them, from any future alterations of their bounds, be there within the said bounds more or lesse land than they pretend to: And if it shall happen any difference to be at present that cannot be by the neighbors themselves decided, Bee it further enacted that two honest and able surveyors shall in presence of the neighbour-hood lay out the land in controversie, and the bounds then laid out to be the certaine bounds, and ever after to be renewed and continue soe, but the person causing the difference to pay the charge of the survey, it tending much more to the preservation of ffriendshipp among neighbors to have a present and finall decission of their differences, while men yet live that are acquainted with the ffirst surveys, and while land i s yet at a low value, then it will be when time hath rooted out all knowledge to the bounds and added a greater value to the land. Be it enacted further that each county court shall appoint and order the vestrys of each parish to devide the parishes into soe many precincts as they shall think necessary for the neighbors to joyne and see each others markes renewed, and to appoint certaine dayes betweene Easter and Whitsunday to goe the said processions and put this act in effectuall execution, and in case the court shall omitt to make such orders and to send the same to the severall vestryes of the parishes in their counties, they shalbe fined ten thousand pounds of tobacco, and the vestry failing in ordering the precincts and the persons to goe together shall be fined twelve hundred pounds of tobacco and the persons fayling to goe upon the day appointed, or to renew his marke accordingly shall for his neglect be fined three hundred and fifty pounds of tobacco.||Processioning of lands when to commence.|
To be renewed every four years.
Bounds, once settl'd by consent of proprietors forever conclusive.
Two honest & able surveyors to settle disputes, in presence of the neighbourh'd.
County courts to direct the vestries to lay off their parishes into precincts, for the purpose of processioning.
Within what period.
On processioners and proprietors of land.
|Pages 58-77||Pages 103-123|