Pages 499-517 
|  Pages 541-556
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| Pages 499-517
| Pages 541-556
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| CHAP. XIII. | |||
| [See chap. 21, of 1705, and notes.] | ||
| I. BE it enacted, by the lieut. governor, council, and burgesses, of this present general assembly, and it is hereby enacted, by the authority of the same, That no lands, tenements, or other hereditaments, shall pass, alter, or change from one to another, whereby an estate of inheritance in fee simple, fee tail, general, or special, or any estate for life or lives, or any greater or higher estate, shall be made or take effect in any person or persons, or any use thereof, to be made by bargain and sale, lease and release, deed of settlement to uses of feofment, or other instrument, unless the same be made by writing, indented, sealed and recorded in the Records of the General Court of this Colony, or in the Records of that County Court where the Land mentioned to be granted or passed, shall lie, in manner following, that is to say: If the person or persons who shall make and seal such bargain and sale, lease and release, deed of settlement to uses of feoffment, or other instrument, at the time of such making and sealing shall be resident within this Colony, then the recording thereof, as aforesaid, shall be made within eight months from the sealing and delivery: but if the person so making and sealing, as aforesaid, at the time thereof, shall be resident at any other place, (than within this Colony,) the recording, as aforesaid, shall be made within two years from the sealing and delivery. | No estate of inheritance, or for life, to pass without deed. Deeds, when to be recorded. | ||
| II. Provided always, That no such bargain and sale, lease and release, deed of settlement to uses, deed of feoffment, or any other instrument, as aforesaid, shall, by the General Court, or County Court, as aforesaid, | Deeds, how proved. |
| be admitted to record; unless the same be acknowledged in such Court by the person or persons makeing or sealing the same, or by some, or one of them, to be his, her, or their proper act and deed; or else, that proof be made of such making and sealing, upon oath, by three witnesses at the least. | |
| III. And be it further enacted, by the authority aforesaid, That the bargain and sale, lease and release, or other deed or instrument heretofore made, or hereafter to be made, in writing, indented and sealed, both by the husband and the wife, and by them personally acknowledged in the General court, or County Court, as aforesaid, (the wife being, or having been first privily examined, whether she doth voluntary assent thereto,) shall be, and is hereby declared to be, to all intents and purposes, as valid and sufficient in law, to convey and pass over all the estate, right, title, interest, claim, and demand, which such wife may or shall have in any lands, tenements, or hereditaments, so to be granted, conveyed, and passed over, whether the same be in right of dower, in fee simple, or whatsoever other estate (not being fee tail) she may have therein, as if the same had been done by fine and recovery, or by any other ways or means whatsoever; any law, custom, or usage, to the contrary thereof, notwithstanding. | Deeds, by husband and wife, to pass the wife's estate. |
| IV. And be it further enacted, by the authority aforesaid, That it shall not be lawful, at any time hereafter, for any person or persons whatsoever, to levy any fine, or to suffer any recovery to be had, whereby to cut off or defeat any estate in fee tail, general, or special, of or in any lands, tenements, or hereditaments, within this colony; neither shall any such estates tail be cut off, or otherwise avoided or defeated, by any ways or means whatsoever, except only by an Act of the General Assembly of this Dominion, for the time being, in such particular case, respectively to be had and made. And all and every fine and fines, recovery and recoveries, and every other act and acts, thing and things whatsoever, which shall hereafter be levied, suffered and made, done, performed, or executed, for and towards the cutting off, avoiding, or defeating any estate tail whatsoever, otherwise than by Act of Assembly, as aforesaid, shall be adjudged, deemed, and taken, and are hereby declared to be, to all intents and purposes, null and | Estates tail, only barred by act of assembly. |
| void; any law, custom, or usage to the contrary thereof, in any wise, notwithstanding. | |
| V. And whereas, in times past, several persons purchasing Lands in this Colony, have procured their Deeds and Conveyances for the same, to be acknowledged and recorded, but not within six months after the making thereof, as by law (a) hath heretofore been required: And some persons have procured their said Deeds an Conveyances to be recorded in other County Courts, than where the Lands have lain, and to be registred in the Council Books; and other persons purchasing Lands, as aforesaid, have taken Deeds and Conveyances for the same, not indented or sealed, or wherein no valuable consideration has been particularly set down and expressed; and some have taken Assignments of Lands only indorsed on the Patents; and others have purchased Lands, and taken Deeds for the same: but by reason of the death of the grantor, or some other such like accident, the said Deeds have not been acknowledge in Court, according to the strict Letter of the Law in that Case heretofore made, but yet have been proved in Court by the oaths of two or more witnesses, and recorded; and others have purchased Lands, and taken Deeds and Conveyances for the same, without livery and seizin being made thereupon in due form of law; by reason of which, several inadvertencies and omissions, many controversies may hereafter arise, to the great grievance and charges of her Majesty's good and lawful subjects of this Dominion: for the prevention thereof, | For prevention of controversies. |
| VI. Be it therefore enacted, by the authority aforesaid, That all Deeds and Conveyances whatsoever, for any Lands within this Colony heretofore acknowledged and recorded at any time after the expiration of the said six months, or registred in the Council Books, or recorded in any other County Court, than where the Lands therein mentioned to be conveyed, have lain, shall be adjudged, deemed, and taken, and are hereby declared to be, to all intents and purposes, as valid and available in Law, and shall enure and take effect as fully and absolutely to the benefit and advantage of all | Former conveyances recorded in council books, or any county court, declared valid. |
| Notes to Edition 1733. | |
| (a) Quære, by what Law this was required. −− (See act 4, of 1656, vol. 1, pa. 417 −− also act 73, of March, 1661-2, vol. 2, pa. 98.) |
| persons in possession of any lands claimed thereby, and to their heirs and assigns, as if the same deeds and Conveyances had been recorded within the said six months, in the General Court, or in that County Court where the Lands have lain, and not otherwise; any law, statute, act, custom, or usage to the contrary thereof, in any wise, not withstanding. And all Deeds and Conveyances whatsoever, bona fide, made for Lands within this Colony, not indented or sealed, or wherein no valuable consideration hath been particularly set down and expressed; and all Assignments indorsed on Patents, shall be adjudged, deemed, and taken, and are hereby declared to be, to all intents, constructions, and purposes, as valid and available in Law, and shall enure and take effect as fully and absolutely to the benefit and advantage of all and every person and persons in possession of any Lands claimed thereby to his and their own proper use and behoof, as if the same Deeds and Conveyances had been actually indented and sealed, and as if a valuable consideration had been therein particularly expressed and set down, and as if the said Assignments had been made, and the Lands therein mentioned, conveyed in due form of law, and not otherwise; any law, statute, custom, or usage to the contrary thereof, in any wise, notwithstanding. And that all Deeds and Conveyances heretofore, bona fide, made for any Lands within this Colony, proved in Court by the oaths of two or more credible witnesses, to have been the acts and deeds of the persons therein mentioned to have made, sealed, and delivered the same, and a record thereof made, shall be adjudged, deemed, and taken, and are hereby declared to be as firm, valid, and available in law, to all intents and purposes, and shall enure and take effect as fully and absolutely to the benefit and advantage of all and every person and persons in possession of any Lands claimed thereby to his and their own proper use and behoof, as if the same Deeds and Conveyances had been really acknowledged in Court by the grantor himself in person; any law, statute, custom, or usage to the contrary thereof, in any wise, notwithstanding. And that all deeds & conveyances whatsoever, where livery of seizin might otherwise have been required, heretofore bona fide made, by any person or persons, for any lands, tenements, and hereditaments, within this colony, where the person or persons | Assignments in patents, deeds, &c. confirmed. |
| to whom the same have been conveyed, have actually entred thereupon; and they and those who have their rights, do still continue in possession thereof, by virtue of such Deeds and Conveyances, shall be adjudged, deemed, and taken, and are hereby declared to be, to all intents, constructions, and purposes, as firm and valid in law, and shall enure and take effect as fully and absolutely to the benefit and advantage of all and every person and persons in possession of any Lands claimed thereby, as if livery of seizin had been thereupon made in due form of law, and not otherwise; any law, statute, or custom to the contrary thereof, in any wise, notwithstanding. | |
| VII. Provided always, That nothing herein contained, shall be construed, deemed, and taken, so as to confirm any lands, tenements, or hereditaments whatsoever, to any other person than those now in actual possession thereof, and such as shall, from time to time, or at any time hereafter, claim by, from, or under them; any thing herein contained to the contrary, or seeming to the contrary thereof, notwithstanding. | Proviso. |
| VIII. And be it further enacted, by the authority aforesaid, That when any Deeds or Conveyances for any lands, tenements, or hereditaments, within this Colony, Shall hereafter be acknowledged or proved in any Court, in order to be recorded, as aforesaid, the livery of seizin thereupon made (in such cases where the same by law is required) shall also, in like manner, be acknowledged or proved, and shall likewise be recorded, together with the Deed or Conveyance so requiring the same, and whereupon it shall have been made. | Livery of seizin. |
| IX. And for the better quieting and avoiding of suits, Be it enacted, by the authority aforesaid, That all writs of formedon in discender, formedon in remainder, and formedon in reverter of any lands, tenements, or other hereditaments whatsoever, at any time hereafter to be sued or brought, by occasion or means of any title or cause heretofore accrued, happened, or fallen, or which may hereafter happen, shall be sued and taken within twenty years next, after the title and cause of action first descended or fallen, and at no time after the said twenty years; and that no person or persons that now hath, or have, or which hereafter may have any right or title of entry into any lands, tenements, or hereditaments, | [Stat 21, Jac. 1, sec. 1, 2.] Limitation of writs of formedon. Of entry. |
| shall at any time hereafter make any entry, but within twenty years next, after his or their right or title hath heretofore descended or accrued, or hereafter shall descend or accrue to the same: and in default thereof, such person so not entring, and their heirs, shall be utterly excluded and disabled from such entry after to be made. | |
| X. Provided nevertheless, That if any person or persons that is or shall be entituled to such writ or writs, or that hath or shall have such right or title first descended, accrued, come, or fallen, within the age of one and twenty years, feme covert, non compos mentis, imprisoned, or out of this Colony; that then such person and persons, and his and their heir or heirs, shall or may, notwithstanding the said twenty years are expired, bring his actions, or make his entry, as he might have done before this act, so as such person and persons, or his or their heir and heirs, shall within ten years next, after his or their full age, discoverture, coming of sound mind, enlargement out of prison, or coming into this dominion, or death, take benefit of, and sue for the same, and at no time after the said ten years. | Saving to infants, feme coverts, &c. |
| XI. And be it further enacted, by the authority aforesaid, That no manner of person or persons shall from henceforth, sue, have, or maintain any writ of right, or make any prescription, title, or claim, to or for any lands, tenements, rents, annuities, or other hereditaments, of the possession of his or their ancestor or predecessor, but only of the seizin or possession of his ancestor or predecessor, which hath been, or now is, or shall be seized of the said lands, tenements, rents, annuities, or other hereditaments, within thirty years next, before the teste of the same writ, or next before the said prescription, title, or claim, so hereafter to be sued, commenced, brought, made, or had: And that no manner of person or persons shall hereafter sue, have, or maintain any assize of mort d'ancestor, cosinage, ayel, writ of entry upon disseizin done to any of his ancestors or predecessors, or any other action possessory upon the possession of any of his ancestors or predecessors, for any Lands, tenements, or other hereditaments, of any further seizin or possession of his or their ancestors or predecessors; but only of the seizin or possession of his or their | Limitation of writs of right. [32 H. 8, c. 2, s. 1.] [Ibid, s. 2.] |
| ancestor or predecessor, which was, or hereafter shall be seized of the same lands, tenements, or other hereditaments, within thirty years next before the teste of the same writ hereafter to be brought: And that no person or persons shall hereafter sue, have, or maintain any other action, writ, or suit whatsoever, for any lands, tenements, or other hereditaments, of or upon his own seizin or possession therein, or of or upon the seizin and possession therein, (a) of any other person or persons (whose right he or they shall have) above thirty years next before the teste of the same writ hereafter to be brought. | [Ibid. s. 3.] |
| XII. Provided nevertheless, (b) That if any person or persons that is or shall be entituled to such writ or writs of right, assize of mort d'ancestor, cosinage, ayel, writ of entry upon disseizen; or that hath or shall have such right to make any prescription, or to have or maintain any other action, writ or suit, as aforesaid, be or shall be at the time of such right or title first descended, accrued, come or fallen, within the age of one and twenty years, feme covert, non compos mentis, imprisoned, or out of this Colony; that then such person or persons, and his and their heir and heirs, shall or may, notwithstanding the said thirty years are expired, bring his suit, or make his prescription, title or claim, as he might have done, if this act had not been made, so as such person or persons, or his and their heir and heirs shall, within ten years next after his or their full age, discoverture, coming of sound mind, enlargement out of prison, or coming into this Dominion, or death, take benefit of, and sue for the same, and at no time after the said ten years. | Saving to infants,&c. |
| XIII. Provided always, That all persons that are now out of this Colony, and have any pretence of right, title, or claim, to any lands, tenements, or hereditaments, within this Colony, where they, or those, under whom they claim, have not been in actual possession thereof within the space of twenty years last past, shall commence and prosecute their suit for the recovery | Saving to persons out of the country. |
| Notes to Edition 1773. | |
| (a) The sense of this part of the clause is hard to be understood. | |
| (b) This proviso has introduced a great difficulty, in counting in a writ of right, where the demandant is within the benefit of the saving. |
| thereof within ten years next coming after the last day of May, which shall be in the year of our lord, one thousand seven hundred and eleven, and at no time after the said ten years. | |
| XIV. And forasmuch, as the right and titles to Lands in this Colony, do originally and chiefly depend on, and are derived from patents granted for the same: For prevention of controversies which hereafter may arise concerning the validity of Patents for Land in this Colony, formerly issued, which are not to be found among the Records in the Secretary's Office, or which have not been duly entred upon Record, or for which no Rights have been obtained, in the manner prescribed by Law, | Former patents confirmed. |
| XV. (a) Be it enacted, by the authority aforesaid, That all such Patents for any Lands in this Colony, formerly granted by the Governor, or Commander in Chief thereof, for the time being, shall be held, deemed, and taken, and are hereby declared to be, to all intents, constructions, and purposes, as firm, valid, and available in Law, to convey and assure the Lands therein granted, unto such person and persons as the same shall have been granted unto respectively, and to their heirs and assigns forever, now being in possession thereof, as if such Patents had been legally entred upon the Records in the Secretary's Office, and as if the Rights had been in legal manner obtained for the same, and duly entred upon the Records as they ought to have been; any law, statute, or usage to the contrary thereof, in any wise, notwithstanding. | |
| XVI. And upon the passing of any Patent for Land hereafter, the Secretary of this Colony and Dominion, for the time being, is hereby required to cause such Patent to be truly entred upon the Records of his Office, together with the Certificate for Rights, either by importation, or by money paid to the Receiver-General of this Colony, whereupon such Patent shall have been obtained. | Patents, &c. to be recorded in secretary's office. |
| XVII. And whereas, in and by Patents granted for Land in this Colony, It is provided, That the Patentee or Patentees shall seat and plant the Land therein to him or them granted, within three years from the date | Explanation of the proviso, in patents. |
| Notes to Edition 1733. | |
| (a) This clause seems to be useless. |
| of the Patent: For the better and more certain understanding of the said proviso, | |
| XVIII. Be enacted, by the authority aforesaid, That if upon a new Survey of Lands heretofore granted to any person or persons, there shall appear to be a greater number of acres within the bounds expressed, than are mentioned and set down in the Patent; in such case, it shall be lawful for the proprietor and possessor of such Lands, for the time being, to sue forth a new Patent for the same Lands, wherein the just quantity of Land shall be more exactly set down: Yet nevertheless, such proprietor and possessor shall not be obliged to make any new Seating or Planting upon the said Land, for or by reason of the Proviso in such new Patent; but the same shall enure and take effect to his benefit and advantage, as fully and absolutely, to all intents and purposes, as if the said proviso were not mentioned in such new Patent; any thing herein contained to the contrary thereof, in any wise, notwithstanding. And that where any person hath heretofore taken up any Tract or Parcel of Land adjoining to any other Tract of Land theretofore in the possession of such person, and shall thereupon have obtained a Patent, (commonly called a Double Patent,) wherein both tracts shall have been joined together; in such case, all patents heretofore so granted, shall be, and are hereby declared to be valid and available in Law, to confirm the same to the Patentee and Patentees, and those claiming under him, her, or them, being in possession thereof, to his, her and their heirs forever, without making any new Seating and Planting, for or by reason of two Tracts being joined in one Patent, as aforesaid; any thing in the said Proviso in the Patent, contained to the contrary thereof, in any wise, notwithstanding. | New patents, for surplus lands. No new seating on such. Double patents confirmed, without new seating, &c. |
| XIX. Provided always, That nothing herein contained, shall be construed, deemed, or taken, to give liberty to any person or persons hereafter to sue forth such double Patents, as aforesaid, and to enjoy the Lands therein granted, (by virtue thereof,) without Seating and Planting that part of the Land so taken up, and joined, as aforesaid, to the Land theretofore in his, her, or their possession, according to the said Proviso in the Patent. | Persons hereafter obtaining double patents must seat, &c. |
| XX. And be it further enacted, by the authority aforesaid, That if any person or persons shall hereafter obtain a Patent for any Tract of Land within this Colony, and shall fail to seat and plant the same within three years, according to the proviso thereof, or shall fail to pay the full quit-rents for the quantity of Land mentioned in his Patent, according to the condition thereof, for the space of three years; such person or persons shall not only lose the Land so granted, and not seated and planted, and for which the quit-rents shall be unpaid, during the space aforesaid, but shall also forfeit and lose all benefit and advantage he might otherwise make by those rights, upon which he obtained such Patent. | Land not seated, &c. for 3 years, lost. [See 7 Geo. 1, c. 2, s. 12.] |
| XXI. And be it further enacted, That no Patent shall hereafter be granted to any person or persons for any Tract or Parcel of Land, as lost and forfeited, for want of seating and planting, or for not paying the quit-rents, as aforesaid, until three years shall be expired, from and after the date of the first Patent granted for the same, or unless there shall be three years quit-rents arrear: Neither shall any Patent be granted, by reason of such forfeiture, until Judgment and Certificate obtained from the General Court, shall be procured for the same, in manner following, that is to say: The person desiring such Grant of forfeited Lands, shall first petition the Governor, or Commander in Chief of this Colony, for the time being, and shall, in his Petition set forth, what County the Land lies in, and to whom it was formerly granted, for what cause the same is become forfeited, and in what County the Grantee resides; and the said Petitioner shall, at the same time, file a Copy of his said Petition in the Secretary's Office, whereupon it shall and may be lawful to and for the Clerk of the said Office, and he is hereby authorized and required to issue out a writ to the Sheriff of the County where the Grantee resides, to summon the said Grantee to appear at the next succeeding General Court, on a certain day thereof, to shew cause why such Land formerly granted to him, and by him forfeited, for want of seating and planting, or for non-paiment of the quit-rents, as the case is, may not be granted to the party petitioning for the same. Which writ shall be served upon such Grantee by the Sheriff, or Under-Sheriff of the respective County where he resides; | How and when patents obtained for lapsed land. Method of obtaining patents for lapsed lands. |
| and if, upon the return thereof so served, the Grantee do not appear, or some other person in his behalf, and make sufficient proof, that the Land petitioned for, hath been seated and planted, or that the quit-rents hath been duly paid for the same, as the case is, then the General Court shall adjudge the said Lands to be forfeited and vested again in the Crown, and shall cause an Order or Judgment to be entred accordingly, and shall certify the same to the Governor or Commander in Chief of this Dominion, for the time being; and also that it doth appear to them, that the then prosecutor was the first Petitioner for the said Land, and hath pursued the same with effect: which Certificate shall entitle the party obtaining the same to have a Patent for the said Lands, in the same manner, and under the same restrictions and provisos, as Lands not before patented. And if there shall happen to be a greater quantity of such forfeited Land, than shall be granted to the first Petitioner, then the residue of such Land so forfeited, shall be granted to such other person or persons as shall petition for the same, under the like restrictions and provisos, and in the same manner, as Lands not before patented, shall be granted. | |
| XXII. Provided always, That if upon trial it shall appear, that such Lands so petitioned for, as aforesaid, shall have been seated and planted by the first Patentee, or those claiming under him, before the exhibiting of such Petition; in that case, such seating and planting, though not made within three years after the date of the Patent, shall be adjudged, and is hereby declared to be a sufficient seating and planting to fulfil the Proviso aforementioned expressed in the Patent. | Proviso. |
| XXIII. Provided always, and it is hereby declared to be the true intent and meaning hereof, That where any person shall obtain a Patent for Land, and shall depart this life within three years after the date of the Patent, without seating and planting, or paying the quit-rents, according to the condition and limitation in his said Patent, and the right of inheritance to the said Land, shall descend to any infant under the age of one and twenty years, feme covert, or person out of the country; in that case, the said Land shall not be adjudged to be forfeited for non-paiment of the quit-rents, or for not seating and planting thereon, until three years after the death of such patentee: And if the guardian to such | Saving to infants, feme coverts, &c. |
| infant under the age of one and twenty years, or the husband of the said feme covert, to whom the said Land shall descend, shall suffer the said Land to lapse and become forfeited, for want of seating and planting thereon, or for non-paiment of the quit-rents within the said three years, such guardian and husband respectively, and their heirs, executors, and administrators, shall be liable to answer the full value of the Land so forfeited, unto the heir at law, after his or her coming of age or discoverture. | Guardian or husband, suffering land to lapse, answerable to the
heir. [See 11 Anne, c. 4, s. 2, 3.] |
| XXIV. And whereas, divers persons in this Colony have entred for, and obtained patents of swamps, marshes, and sunken grounds, lying adjacent to the high grounds of persons theretofore patented, without the knowledge or privity of the owner of such adjacent high land, to the great prejudice and inconvenience of the owners of such high lands: For remedy whereof for the future, | |
| XXV. Be it enacted by the authority aforesaid, That no person or persons whatsoever, shall take up and patent any swamps, marshes, or sunken grounds, lying contiguous to the high land of any person or persons theretofore patented, until such person or persons, intending to take up and patent the same, shall, in the presence of two witnesses, have given notice of such his intention, to the proprietor and possessor, for the time being, in possession of such high land, and until one whole year shall be fully expired from & after the time of giving such notice as aforesaid; and then it shall and may be lawful to and for such person or persons, (having given notice as aforesaid,) and to his, her, or their heirs or assigns, to take up and patent the same: In which patent, shall be particularly expressed and set down, whether the lands therein granted, are swamps, marshes, or sunken grounds, and to whose high lands they are adjoining. And all and every patent and patents which shall be obtained, contrary to the true intent and meaning hereof, are hereby declared to be, to all intents, constrictions, and purposes whatsoever, null and void, as if the same had never been made; any law, statute, or usage to the contrary, notwithstanding. And if any controversy shall thereafter arise concerning such notice being given, within five years after such person or persons (having given notice as aforesaid) shall be in actual possession of such swamps, | Marshes, swamps, &c. how taken up. |
| marshes, or low grounds, as aforesaid, the onus probandi shall lie upon the person who ought to have given the notice; and if no such controversy do arise in that time, five years possession shall be held and taken as good proof that notice was given, according to the true intent and meaning hereof. | |
| XXVI. Provided always, That nothing herein contained, shall be construed, deemed, or taken, to give liberty to any person or persons to take up and patent any such swamps, marshes, or sunken grounds, lying contiguous to the high lands of any feme covert, infant under the age of one and twenty years, or any person not being compos mentis, on pretence, or by virtue of notice being given, as aforesaid, either to such feme covert, infant or person non compos mentis; or to the husband, guardian, or other person, being in possession thereof. | Saving to infants, &c. |
| XXVII. And whereas, through the ignorance or negligence of surveyors in former times, divers persons have taken up and held greater quantities of land than are mentioned in their patents or deeds, (and for which they pay no quit rents:) For quieting the possessions of such person, and for preventing all controversies that may hereafter arise by an person or persons pretending to take up the said surplus land, | |
| XXVIII. Be it enacted, by the authority aforesaid, That it shall not be lawful for any person to enter for any parcel of land held of the crown, for or by reason of its being surplus land, until the party intending to take up and patent the same, shall have given notice to the person holding such lands, in the like manner as is herein before directed for marshes, swamps, and sunken grounds, and until one whole year shall be fully expired, from and after the time of giving such notice: And in case the possessor of the said land shall not, within the said year, obtain rights for the said surplus lands and give an account to the sheriff of the county where the said lands lie, of the just quantity held by him, and pay all the quit-rents that shall be due for the same, from and after the publication of this Act, it shall and may be lawful to and for the person who gave the notice, as aforesaid, to survey the said lands at his own charge, and to sue forth a new patent for all the surplus land that shall be found within the bounds of the patent, deed, or other title, or conveyance, by which | Surplus land how acquired. |
| the same is held; which lands shall be granted to him, in the same manner, and under the like restrictions, limitations, and conditions, as lands not before patented. | |
| XXIX. Provided always, That it shall be in the power of the patentee or possessor, to assign and allot the surplusage land to the person claiming the same, in what part of the tract he pleases, in one entire piece. | Proviso. |
| XXX. Provided also, That if upon notice given, as aforesaid, the person in possession shall, within the said year, survey his tract, and ti be found that he hath no more land than he pays quit-rents for, the person giving such notice, shall be liable to pay all the charge of the said survey, for his unjust vexation, and be liable to an action on the case, for the same, at the suit of the party greived; and that in all such new surveys, and allowance shall be made to the patentee or possessor, of five acres for every hundred, for the variation of instruments. | Further proviso. |
| XXXI. And for preventing any controversies that may hereafter arise about the bounds of lands held and possessed by the inhabitants of this colony, Be it enacted, by the authority aforesaid, That once in every four years, the bounds of every persons's land shall be processioned, (or gone round,) and the land markes renewed, in manner following, that is to say: The court of every county, at some court between the first day of June and the first day of September, which shall be in the year of our Lord God, one thousand seven hundred and eleven, and so between the first day of June and the first day of September, in every fourth year thereafter, by order of court, shall direct the vestry of each parish within their county respectively, to divide their parishes into so many precincts, as to them shall seem most convenient for processioning every particular person's land in their several respective parishes; and to appoint the particular times between the last day of September and the last day of March then next coming, when such processioning shall be made in every precinct; and also to appoint at least two intelligent honest freeholders of every precinct, to see such proscessioning performed, and take and return to the vestry an account of every person's land they shall procession, and of the persons present at the same, and of what lands in their | Processioning, how and when to be. |
| precincts they shall fail to procession, and of the particular reasons of such failure: which order shall be signified in writing to the church-wardens of every parish within every respective county within this colony, by the clerk of the court, within ten days after the making thereof; and thereupon, the church-wardens shall cause a vestry to be summoned to meet within ten days after the receipt of such order, at which vestry, the said order of court shall be exactly and punctually obeyed in every particular; and thereupon notice shall be punctually given by the church wardens at the church or chapel of the parish, at least three Sundays next before the same is to be performed, of the persons and time so appointed by the vestry, for processioning in every several precinct as aforesaid; and also, the vestry shall cause the accounts of the two honest freeholders of every precinct, made and returned to them, as aforesaid, to be registered in particular books, to be kept for that purpose, by the clerk of the vestry. And to prevent any mistakes or omissions that may happen in every such register, the church-wardens, in presence of the vestry of the parish, shall examine the same, and compare them with the original returns, within six months after such return shall be made, from time to time, and shall accordingly certify the same, by setting their hands to an attestation thereof in the register so by them examined and compared: And that no person may pretend ignorance of his duty herein, the vestries are also to direct what precinct or precincts in their parish respectively, every particular freeholder thereof shall attend and perform the processioning, as aforesaid: And if any parish shall happen to lie in several counties, then the orders of the court of each county shall be signified, as aforesaid, to the church-wardens thereof, as aforesaid, and shall also be obeyed by the vestry, in manner as is before directed; and if any county court shall at any time hereafter fail to perform their duty herein, every justice of the peace in such county shall forfeit and pay the sum of one thousand pounds of tobacco; and if any vestry shall at any time hereafter fail to perform their duty herein, every particular member of such vestry shall forfeit and pay the sum of two hundred pounds of tobacco; and if any church-warden or church-wardens shall at any time hereafter fail to perform his or their | Penalty on justices, &c. for breach of this law. |
| duty herein, every such church-warden shall forfeit and pay the sum of five hundred pounds of tobacco; and if the clerk of any court shall hereafter fail to perform his duty herein, such clerk shall forfeit and pay one thousand pounds of tobacco; which said forfeitures shall be one moiety to our sovereign lady the Queen, her heirs and successors, for and towards the better support of the government, and the contingent charges thereof; the other moiety to him or them that will inform or sue for the same: to be recovered, with costs, by action of debt, bill, plaint, or information, in any court of record withing this dominion, wherein no essoin, protection, or wager of law, shall be allowed. | |
| XXXII. Provided always, That upon any information brought, or suit commenced, against any justice of the peace, vestryman, or church-warden, for the breach of this act, if the defendant or defendants shall give sufficient evidence to the court where such information or suit shall be depending, that he was necessarily absent from such court or vestry, or that being there, he offered to do his duty in pursuance of this act, than the information or suit shall be dismissed; and if any other person, not having lawful excuse, shall fail to perform his duty herein, every such person shall forfeit and pay the sum of five hundred pounds of tobacco; to be recovered, with costs of suit, by the church-warden or church-wardens of the parish wherein such forfeiture shall be incurred, to be applied for and towards the purchasing of ornaments for the church or chapel of such parish. | Absence, &c. when an excuse. Penalty for neglect of duty. |
| XXXIII. And be it further enacted, That the procession of the bounds of any person's land, at three several times of processioning, in manner aforesaid, shall be held, deemed, and taken, to be sufficient to settle the bounds, so as the same may never thereafter be altered. | Bounds, three times processioned, unalterably fixed. |
| XXXIV. And whereas divers persons, owners of lands in this colony, refuse to suffer their said lands to be processioned, to the great inconvenience and damage of the owners of lands thereto adjoining: For remedy whereof, | |
| XXXV. Be it enacted, by the authority aforesaid, That if the owner of any lands shall refuse to suffer his lands to be processioned, pursuant to the directions in this act, given, that then, and in such case, the two | Persons refusing to have their land processioned, court shall direct |
| freeholders appointed to procession the same, shall within ten days after such refusal, certify the same, under their hands, to the churchwardens of the parish where the said lands shall lie, who shall carry the said certificate to the next sitting of the court, for which the order for processioning the said lands did issue; which said court shall order the surveyor of their county, with a jury, to lay out and procession the lands of the person refusing to suffer his lands to be processioned, at the charge of the person so refusing, and to return the survey thereof, with the proceedings, to the next court after the survey made; which survey and proceedings shall be recorded in the records of the said county court, and a copy thereof shall, by the clerk of the said county court, be sent within ten days after the return of the said survey and proceedings, to the churchwardens of the parish where the said lands shall lie, and shall be registred in the vestry-book of the said parish: And if the lands of the person refusing to suffer such processioning to be made, shall happen to lie in more counties than one, then a certificate shall be made to each of the courts of the said counties, in manner aforesaid; whereupon the court for the county, in which the beginning of the bounds of such lands shall lie, shall order the surveyor, with a jury of their county, to survey and procession the whole bounds of such land, and the sheriff of each of the said counties to attend such surveyor in their respective counties; which survey and surveys, in manner aforesaid made, shall be held, deemed, and taken, to be a sufficient processioning of the said lands, to all intents and purposes, as if the same had been made and done, by and with the consent of the owner of the said lands: And if any justice of the peace, churchwarden, county court clerk, or other person, shall fail to perform his or their duty herein, not having lawful excuse therefore, he and they shall forfeit and pay the like penalties, as are before in this act laid and given on such justice, churchwarden, clerk, and other person respectively failing to do his and their duty in the due execution of this act: to be recovered in like manner, and to the uses aforesaid. | it, at the charge of the party. |
| XXXVI. Provided always, That the procession and settlement of the bounds of any lands belonging to any person, being only tenant for life of the said lands, shall not bar or conclude the heir in reversion or remainder | Heir may controvert bounds within 6 years. |
| to the said lands, but that such heir may at any time within six years after the death of the tenant for life controvert the said bounds, as if such procession and settlement had never been made. | |
| XXXVII. Provided also, That the processioning and settling the bounds of any lands belonging to any person, being within the age of one and twenty years, feme covert, non compos mentis, imprisoned, or out of the colony, shall not be conclusive to such person, until after the expiration of six years from and after the said several incapacities shall be removed and determined. | Saving to infants, &c. |
| XXXVIII. And whereas by an act of assembly, made at a general assembly, begun at the capitol, the twenty-third day of October, in the year one thousand seven hundred and five, intituled, An act concerning the granting, seating, and planting, and for settling the titles and bounds of lands; and for preventing unlawful shooting and ranging thereupon, It is among other things, enacted, That the bounds of every person's land in this colony shall be processioned, in manner therein directed: In pursuance of which said act of assembly, the lands of several persons in this colony, have at great charge and trouble been processioned, | [See act of 1705, c. 21.] |
| XXXIX. Be it therefore enacted, by the authority aforesaid, That all and every processioning of lands which shall have been performed and made, in pursuance of, and according to the directions of the said act, shall be held to be good, valid and effectual; and that every procession of land which shall have been made and performed, in pursuance of the said act, in manner thereby prescribed, shall be held, deemed, and taken, and is hereby declared to be one of the three times of processioning the said land, by this act, held, deemed, and taken, to be sufficient to settle the bounds of lands, so as the same may never thereafter be altered. | Bounds processioned, under act of 1705 confirmed. |
| XL. And be it further enacted, and declared, That if any person or persons shall, at any time hereafter, shoot, hunt, or range, upon the lands and tenements, or fish or fowl in any creeks or waters included within the lands of any other person or persons, without licence for the same first obtaining of the owner and proprietor thereof, every such person so shooting, hunting, fishing, fowling, or ranging, being thereof convict, by confession, or the oath of one witness, shall forfeit and pay, for every such offence, the sum of five hundred | Hunting, &c. on others land, without licence, penalty for. |
| pounds of tobacco: to be recovered, with costs, by the person or persons that shall be thereby aggrieved, to their proper use, by bill, plaint, information, or action of debt, in any court of record within this dominion, in which no essoin, protection, privilege, wager of law, or more than one imparlance, shall be allowed; and moreover shall be liable to an action at common law, wherein the party grieved, shall recover his damages. And if any person shall be a third time convicted, in manner aforesaid, of such shooting, hunting, fishing, fowling, or ranging, the justices of that court, over and above giving judgment for the forfeiture, as aforesaid, shall commit such person to the common jail, there to remain until he shall find sufficient sureties to be bound with him in the sum of ten pounds sterling, for his good behaviour for one year then next coming; and if he shall, within that time, be found guilty, by confession, or the oath of one witness, of shooting, hunting, fishing, fowling, or ranging, as aforesaid, the same shall be, and is hereby enacted and declared, to be a breach of the good behaviour. | |
| XLI. And be it further enacted, That one act of assembly, made at a general assembly, begun at the capitol, the twenty-third day of October, in the year one thousand seven hundred and five, intituled, An act concerning the granting, seating, and planting, and for settling the titles and bounds of lands; and for preventing unlawful shooting and ranging thereupon, and all and every other act and acts, and every clause and article thereof, heretofore made, for so much thereof as relates to any matter or thing whatsoever, within the purview of this act, is and are hereby repealed, and made void, to all intents and purposes, as if the same had never been made. | Repealing clause. Act of 1705, repealed, in part. |
| CHAP. XIV. An act for the further restraint of tippling houses, and other disorderly places. | |
| I. WHEREAS, by one act of assembly, made at her Majesty's roial capitol, the twenty-third day of October, in the fourth year of her Majesty's reign intituled, An act for regulating ordinaries, and restraint of tipling houses, It is enacted, That whosoever shall | Preamble. Recital of 4 Anne, cap. 40. |
| retail liquors in their houses, without licence first had and obtained, according to the directions of the said act, shall forfeit and pay two thousand pounds of tobacco; notwithstanding whereof, divers loose and disorderly persons have found means to evade the intent of the said law, by keeping strong drink in their houses, and selling the same out of doors; and by setting up booths, arbours, and stalls, at court-houses, race-fields, general-musters, and other public places, where, not only the looser sort of people resort, get drunk, and commit many irregularities, but servants and negros are entertained, and encouraged to purloin their master's goods, for supporting their extravagancies: For remedy of which abuses, | |
| II. Be it enacted by the Lieutenant-Governor, Council, and Burgesses, of this present General Assembly, and it is hereby enacted by the authority of the same, That from and after the publication of this act, no person whatsoever shall sell by retail, any wine, beer, cider, brandy, rum, or spirits, either in houses, or booths, arbours, or stalls, or any other place whatsoever, unless such person or persons shall first obtain a licence for so doing, in the manner directed by the afore-recited act of assembly. And if any person or persons shall take upon them to retail any strong liquors, without having first obtained such licence for the same, every such person or persons so offending, shall be liable to all the penalties and forfeitures contained in the aforesaid act, for selling drink without licence. | Penalty for retailing liquors, in houses, booths, arbours, &c. |
| III. Provided always, That nothing herein contained, shall be construed, deemed, or taken, to prohibit or restrain any merchant, or other person, to sell, in what quantity he pleases, any of the aforementioned liquors, not intended to be tippled or drunk out at the houses, stores, or plantations, where the same are sold. | Merchants excepted. |
| CHAP. XV. An act for raising a public levy. |
[From MS.] |
| BE it enacted, by the Lieut. Governor, Council and Burgesses of this present General Assembly and it is hereby enacted, by the authority of the same, That the | Public levy or taxes, from 1706 to 1710. |
| sum of nine pounds and a quarter of tobacco be paid by every tythable person within this her majesty's colony and dominion of Virginia, for the defraying and payment of the public charge of the country, being the publick's levy, from the twenty-fourth day of April, one thousand seven hundred and six, to the twenty-fifth day of October, one thousand seven hundred and ten; and that it be paid by the collectors of the several countys to the several assembly: And if it shall happen that there shall be more tythables in any county than the present levy is laid on, then such county to have credit for soe much, to the use of the county; and if there shall happen to be less tythables in any county, then such county shall bear the loss. | |
| And be it further enacted, That there shall be paid to the clerk of the house of burgesses the sume of one thousand pounds of tobacco, and cask, for every copy of the laws of this present session of assembly that shall be sent to the several county courts; and that the said courts shall raise the same in their county levyes, at the next levy after the receipt of the said copyes respectively. | Fee of the clerk, for a copy of the laws of this session. |
| CHAP. XVI. An act to set free Will, a Negro belonging to Robert Ruffin. | |
| WHEREAS a Negro slave, named Will, belonging to Robert Ruffin, of the county of Surry, was signally serviceable in discovering a conspiracy of diverse negros in the said county, for levying war in this colony, for a reward of his fidelity and for encouragement of such services, | A conspiracy, having been discovered by Negro Will, |
| Be it enacted, by the Lieutenant-Governor, Council and Burgesses, of this General Assembly, and it is hereby enacted, by the authority of the same, That the said Negro Will, is and shall be forever hereafter free from his slavery, and shall be esteemed, deemed and taken, and is hereby declared to be a free man, and shall enjoy and have all the liberties, priviledges and immunitys | he is emancipated, as a reward for his services. |
| of or to a free negro belonging, and shall inhabit, continue and be within this colony and dominion of Virginia, if he think fit to continue therein. | ||
| And be it further enacted, by the authority aforesaid, That the sume of forty pounds sterling be paid and satisfyed to the said Robert Ruffin for the price of the said negro Will, made free as above said, by Elizabeth Harrison, widow and administratrix of the goods and chattles, rights and credits, of Benjamin Harrison, the younger gentleman, decd. late treasurer of the public impositions of this colony, out of the public moneys in her hands. | Owner paid. | |
| CHAP. XVII. | [From MS.] | |
| ||
| WHEREAS Elizabeth Harrison, widow and administratrix of the goods and chattles, rights and credits of Benjamin Harrison, the younger, late of the county of Charles City, gentleman, deceased, hath alledged that the said Benjamin Harrison, her late husband, was seized in fee simple of and in diverse lands and tenements, situate, lying and being in the countys of Charles City, James City, Prince George and Surry, in this colony and dominion of Virginia; as also of and in diverse Negro Slaves to the said Lands appertaining, and did in his last sickness desire certain of his lands and plantations lying on the south side of the river Nottoway, in the said county of Surry, as also twenty of his Slaves to the said plantations appertaining, should be sold, and that the money therefrom ariseing, should be applyed for and towards satisfaction of his just debts; and did direct his will to be made in writing, thereby appointing the same to be performed; and the said Elizabeth Harrison praying to be enabled to sell and dispose of the said plantations and twenty slaves, according to the desire and appointment of her said husband; all which said allegations, being sufficiently | Preamble. |
| proved to be true to the satisfaction of this house of burgesses, as also that the said Benjamin Harrison, at the time of his death, was seized in fee simple of twenty thousand acres of land and of above eighty slaves, and that Nathaniel Harrison, gentleman, next brother to the said Benjamin Harrison, is freely consenting to the passing this act. | |
| Be it therefore enacted, by the lieutenant-governor, council and burgesses, of this general assembly, and it is hereby enacted, by the authority of the same, That all the plantation, seat, or tract of land, commonly called and know by the name of Rattle hill, situate, lying and being on the south side of the river Nottoway, in the said county of Surry, containing by estimation, two thousand one hundred acres, more or less, and all that the plantation, seat or tract of land, commonly called and known by the name of Hunting quarter, situate, lying and being on the south side the said river Nottoway, in the said county of Surry, containing by estimation, one thousand six hundred acres, more or less, and also all that plantation, seat, or tract of land, commonly called or known by the name of Goodriche's Quarter, situate, lying and being on the south side the said river Nottoway, in the said county of Surry, containing according to estimation, one thousand seven hundred acres, be the same more or less, together with all and singular the edifices, buildings and houses, to the said plantations and seats of land belonging, with the appurtenances; and also twenty negro and mulatto slaves, named as followeth: Cæsar, Ned, Stephen, New England Jack, Michael, Sambo, Cæsar, Dick, Simon, James, Kea, Wasa, Sarah, Betty, Adam, Ben, Roger, Giles, Prue and Phœbe, to the said plantations or tracts of land, or to one of them belonging and appertaining, be and are hereby vested and settled in the said Elizabeth Harrison, and her heirs, as fully and absolutely to all intents and purposes whatsoever, as the said lands and negros and mulattos were vested in the said lands and negros and mulattos were vested in the said Benjamin Harrison, at the time of his death, to the uses and purposes hereafter mentioned, that is to say: That the said Elizabeth Harrison, shall and may, as soon as conveniently may be, sell and dispose of all and singular the lands, plantations, slaves and premises hereby vested in her, to the best purchaser and for the best price that may be gott for the same; and that the moneys | Certain lands and slaves of Benj. Harrison, dec. vested in Elizabeth Harrison, his adm'x, with power to sell, &c. |
| ariseing by the sale thereof shall by the said Elizabeth Harrison be applyed and disposed of for the paying and satisfying such debts as the said Benjamin Harrison justly owed at the time of his death, and that the surplus of the moneys ariseing by such sale, after the debts aforesaid shall be truly paid, shall remain and be in the hands and possession of the said Elizabeth Harrison, for the use and benefitt of Benjamin Harrison, only son of the said Benjamin Harrison, decd. by the said Elizabeth Harrison, and of his heires to be paid to him when he shall attain to the age of twenty-one yeares. | Surplus, how disposed of. |
| And if the said Benjamin Harrison, the son, shall depart this life before he attain to the age of twenty-one yeares, aforesaid, or without issue, that then the said surplus shall be paid to Elizabeth Harrison, only daughler of the said Benjamin Harrison, decd. by the said Elizabeth Harrison, his said wife, and to no other use or purpose whatsoever. | Proviso. |
| And for the better security and satisfaction of the purchasers of all or any of the said lands or slaves, | |
| Be it enacted, by the authority aforesaid, That all and every person or persons, their heires and assigns, who shall become purchaser or purchasers of any of the said lands or slaves, mentioned or intended to be vested in or conveyed by these presents, to the said Elizabeth Harrison, shall quietly hold and enjoy the same according to their severall and respective purchases, in as full, ample and beneficial manner as the said Benjamin Harrison, decd. could by any conveyance, deed, or writeing, executed in his life time, with the consent of the said Elizabeth Harrison, late his wife, have conveyed the same. | Purchasers assured of their titles. |
| Provided always, and it is the true intent and meaning of these presents, That until sale shall be made of the said several lands and tenements, hereby vested in the said Elizabeth Harrison, that the rents, issues and profitts ariseing and accruing by or out of the said lands and slaves, shall accrue and be to the use, benefitt and advantage of such person and persons as the same would have done if this act had not been made. | Profits, how appropriated till sale. |
| Pages 499-517
| Pages 541-556
|