Ferrell v. . Boykin ( 1866 )

The facts were, that at November Term, 1857, the County Court of Nash County bound a base-born free negro child as an apprentice to the plaintiff. The child had been born in Nash County, and had lived there with his mother until December, 1856, when he removed with his mother to the county of Wilson, where the continued to reside until the time of the trial. In June, 1857, soon after his mother's death, the child had been bound by his mother's husband, who was also his reputed father, to the defendant, Boykin.

Upon a demand being made by the plaintiff, the defendant refused to deliver up the child, and therefore this suit was brought.

At the trial, the defendant insisted that the plaintiff could not recover, either because the indenture to himself was valid, or because the order made by Nash County Court was void.

The court directed the jury to find a verdict for the plaintiff, reserving the questions of law. Afterwards, being of opinion with the defendant upon the question of the jurisdiction of the County Court of Nash, the court ordered the verdict to be set aside and a nonsuit entered.

Whereupon the plaintiff appealed. It is plain law that an illegitimate child receives (10) the settlement which its mother had at the time of its birth; and that such settlement continues until a new one is acquired. By the Rev. Code, ch. 86, sec. 12, a new settlement is gained by a continuous residence in another county for one year, at least.

County courts being required (Rev. Code, ch. 5, sec. 1), to bind out "all base-born colored children" within their respective jurisdictions, it was not only the right, but the duty of the County Court of Nash County to bind out the boy, who is the subject of the present controversy. His residence in Wilson County, being for less than a year, had given him no settlement there, and, of course, his original settlement remained.

In the course of the argument here, it was said that the County Court of Nash ought not to have assumed jurisdiction over the boy, unless that of Wilson had returned him thither, as a pauper. The answer to this is, that it is the duty of the court to bind out all free base-born colored children, whether they are paupers or not! At least such was the law at the time of this transaction. It was assumed by the Legislature that children in their condition would be neglected, and so the courts were directed to bind out all of that class. In the present case, the County Court of Nash County, being responsible for the proper nurture of the boy, was not to wait until he became a vagabond, and had been cast back upon it as a pauper, by the county of Wilson; but it was its duty at once to exercise its legitimate control, and bind him as an apprentice. Prue v. Hight, 7 Jones, 265.

The plaintiff being master of the boy, had a right to his services; and the defendant, having employed him, and then detained him from the plaintiff after a demand, is liable for the value of his services.

The judgment rendered in the court below must be reversed, and judgment given here for the plaintiff, in accordance with the verdict.

PER CURIAM. Judgment reversed.

Cited: S. v. Elam, post, 464.

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