| N.C. | Jun 5, 1872
In ex parte Ambrose,
Notice was given in the case before us, but it is objected that the notice ought to have been issued by the Judge of Probate, and not by the person who was seeking to have the orphans bound to him; that they were not obliged to respond to such notice. There is certainly some force in the objection, but we do not think it controlling in this case; because it is stated that the notice was sued out of the Court of Probate, and that it was served by the sheriff. Holding the notice (309) to have been sufficient, still some reason ought to have been given *224 why the Judge of Probate did not observe the "prudence" of having the orphans actually present before him; for, it is not to be tolerated that an officer of the law shall fail to observe what is prudent, any more than what is necessary, without a sufficient excuse. Here the only excuse is, that they were notified and did not attend. But then the case states that both they and their counsel were prevented from attending by the inclemency of the weather. So the Judge of Probate ought, of his own motion, to have continued the case until he could have taken the necessary steps to have them before him. The children ought to be present in order that the Judge of Probate may, from personal inspection, as well as from testimony, judge of their condition and of their wants, and of their capacity for any particular service, and of the terms which he ought to make with the master on their behalf, and also in order that the public may see the children, so that there may be competition among applicants for their services, as no one would like to take an apprentice without seeing the person. There may be circumstances to excuse the binding in the absence of the children, but none appears in this case. In habeas corpus cases and inquisitions of lunacy, the person is required to be present.
But upon the supposition that the proceedings were regular, the main question is, were these children proper subjects to be bound out? If they were, then most of the fatherless children in the State, white and colored, are liable to be taken from their mothers and bound out.
The facts are, that the mother and her two youngest sons work rented lands and make average crops. "She is as industrious and frugal and takes as good care of her children as colored mothers generally do. Her youngest child, a daughter, had a good home with a respectable gentleman, and her oldest son was hired out at $60 a year. And all her (310) children would hire' for $12.50 a month." And there is no allegation of misbehaviour of her or her children. There has been no presentment of the grand jury, and no complaint from any person except from him who wants their services. It is not surprising that he should want them bound, because thereby he would get services worth $150 a year now, and constantly increasing in value. For these services he would make no return to the mother, who had the burden of supporting them, and no return to the children, except such education as they can get at the public schools. This would seem to be great injustice to the mother and great hardship upon the children, to say nothing of the impolicy of breaking up the domestic relations when there is no public necessity for it.
The statute which is said to authorize this apparent evil is as follows: *225
"The Judges of Probate in their respective counties shall bind out as apprentices, all orphans whose estates are of so small value that no one will educate and maintain them for the profit thereof."
It must be admitted that the language of the statute is comprehensive, and if understood literally, will embrace almost all the orphan children in the State. Since the wreck of fortunes by the war, it is a rare case where a fatherless child can be educated and maintained out of the profits of its estate alone. But still, when the family is kept together and industry and economy are added to a small income from property, the children may be provided for in the domestic forum. The public does not become interested to break up these relations unless the children are likely to become chargeable upon the parish, or unless their moral or physical condition requires a change. This has been the spirit of all our former legislation upon the subject, and in this spirit we think our present statute, C. C. P., sec. 484, must be contrued. It must be construed as if it read, all orphans, the profits of whose estates will not support them and who are likely to become chargeable upon the county, or whose moral, mental or physical condition require it, (311) shall be bound out, etc. Such is not the case before us.
There is error. This will be certified to the end the children may be discharged.
PER CURIAM. Reversed.
Cited: Ashby v. Page,