Owens v. Chaplain, 48 N.C. 323, 3 Jones 323 (1856)

June 1856 · Supreme Court of North Carolina

48 N.C. 323, 3 Jones 323

HARRIET OWENS vs. JASPER CHAPLAIN.

It is error in a County County to order the cancelling of an indenture of apprenticeship which has been rightfully and properly granted, except for some of the causes enumerated in the Act of Assembly. Rev. Code, ch. 5, sec. 3.

Although it is usual to have the apprentice present in Court when he is bound out, yet there is no provision in the Act which requires it.

This was a motion, upon notice to the defendant to show cause why a certain colored apprentice, by the name of Polly Gordon, should not be taken from him and bound to the plaintiff, heard before his Honor, Judge Manly, at the Spring Term, 1856, of Cam tuck Superior Court.

On the return of the notice the County Court of Currituck granted the motion and awarded that the defendant should pay costs. From that order, the defendant appealed to the Superior Court, which affirmed the order of the County Court, and the defendant appealed to this Court.

In 1851, the child in question had been hound at ahoutthe age of five years, by the County Court of Currituck, to one Frederick Owens, a colored man, who kept her till some time in the year 1854. In October of that year, this man Owens went on a voyage to the West India Islands, and has not been since heard from. The apprentice continued with his widow, the plaintiff, until some time during that year, when she was taken out of her custody by the defendant. The usual order for binding was obtained by the defendant, who entered into bond in the usual covenants to provide for the apprentice. No notice had been given to Harriet Owens of defendant’s intention to apply for this girl, nor was the apprentice present when she was hound to defendant. It appeared that the defendant is a man of good character and a suitable and proper person to be entrusted witb an apprentice.

Judgment for plaintiff, that the indenture should be can-celled and the apprentice hound to plaintiff, from which judgment defendant appealed.

Jordan, for plaintiff.

No counsel appeared for defendant in this Court.

Nash, C. J.

Every indenture of apprenticeship is a contract made between the regular and proper authority, the County Court, and the master, for the benefit of the apprentice. Both the master and the apprentice have an interest in it; the former in the services of the infant for the time specified in the deed, and the latter in the instruction and maintenance by the former for the time of his servitude. This contract, as between the parties to it, is as binding as any other, made between individuals competent to contract, and neither has the power, at his mere will, to annul it. Notwithstanding, however, this binding efficacy of the indentures, the County Court still possesses a supervising power as to the apprentice. If it shall be made known to them that the apprentice is ill-used, or not taught the trade, profession or employment to which he is bound, or in the case of a white orphan, is not taught reading, writing and arithmetic, the Court may cancel the indenture, and bind the infant to some other person. Rev. Code, ch. 5, sec. 3. This binding an apprentice is a personal trust, and the master cannot therefore transfer the indenture ; and when he die swithin the time limited, the trust expires and the orphan returns under the immediate jurisdiction of the County Court, to be again bound out. Futrell v. Vann, 8 Ire. Rep. 402. The case states that at August Term, 1851, of Currituck Court, Polly Gordon, a free child of color, was bound apprentice to Frederick Owens, and that the latter left the State in October, 1854, and has never since been heard from. At May Term, 1855, upon the application of the defendant, the child was bound to him, and regular indentures executed.

The first inquiry is, had the Court at May Term any power to bind the orphan to the defendant? We think they had. Frederick Owens had been gone from the State seven months, upon a voyage to the West Indies, which is usually performed in as many weeks. There was then a dereliction of duty on his part to his apprentice, either voluntary or involuntary; if involuntary, as by reason of his death, no doubt could exist as to the right of the Court to bind the child to some other person, for his interest had ceased; if voluntary, then he had, himself, abandoned his duty and thrown the child upon the public. By the equity of the act cited, it would be such a neglect in giving her instruction in her profession or employment, as would authorise the action of the Court in 1855.

As the Court had the power to re-bind the orphan, we are bound to presume that they had sufficient ground to act on. The contract of indenture made in 1855, whereby the Court bound the orphan to the defendant, was a valid one, and it was not in the power of the Court to deprive him of his interest in it, except for the causes enumerated in the act, or such as come within its equity. The case states that the defendant was a man of good moral character, and such a one as it was proper to bind apprentices to ; and further, that ho had faithfully discharged his duties as master of the orphan.

It is stated in the record, that the child, Polly Cordon, was not present when she was apprenticed to the defendant, nor was any notice served upon Harriet Owens of the intention of the defendant to apply to the Court to have her bound to him. There is nothing in the act requiring the presence of the orphan when the binding takes place, though it is usual. Here it was not required, for the Court had, upon its records, the age of the child in the indentures previously entered into by Owens, and the only object which could be answered by having the child before them would be to enable the Court to form for themselves a judgment of its probable age.

As to the notice to Harriet Owens, none was necessary; she had no interest in the question. If her husband is still alive, the indenture being with him, she has no interest in the question; if dead, it is at an end.

There is error in the opinion of the Court below, which is reversed, and the notice to cancel the indenture of apprenticeship to the defendant is dismissed.

Per Curiam.

Judgment reversed.