The State Records of North Carolina - Volume XXV - Pages 319-325
Whereas, for want of proper Laws for regulating Guardians, and the Management of Orphans, their Interests and Estates have been greatly Abused and their Education very much neglected; for prevention whereof for the future, Be it Enacted by the Governor, Council and Assembly, and it is hereby Enacted by the Authority of the Same, That where any Person hath or shall have any Child or Children under the age of Twenty-one Years and not Married, It shall and may be lawfull to and for the Father of Such Child or Children, whether born at the time of his Death or in Ventre Sa Mere, or whether Such Father be within the age of Twenty-one Years or of full age by Deed executed in his life time or by his last Will and Testament in Writing in Such Manner and from time to time as he Shall think fit, to dispose of the Custody and Tuition of Such Child, or Children, for and during Such time as he, She or they shall remain under the Age of Twenty-one Years, or for any less time to any person or persons other than the people called Quakers and Popish Recusants, and every Such disposition heretofore made, or hereafter to be made, shall be good and Effectual against all and every Person and persons Claiming the Custody and Tuition of such Child and Children as Guardian in Soccage or otherwise; and the person or persons to whom such Custody and Tuition hath been or shall be so disposed or devised shall and may maintain an Action of ravishment of Ward or Trespass against any person, or persons, who shall wrongfully take away, or detain, any such Child or Children, for the Recovery of Such Child or Children, and Shall and may recover damages for the Same in the said Action with Costs for the benefit of Such Child or Children. Provided Nevertheless, That nothing in this Act contained Shall be Construed to hinder any of the People commonly called Quakers to make such Disposition, or to hinder the Supreme or County Courts from Committing the Guardianship and Custody of their Children to the People of that Persuasion and that every person and persons to whom such Custody and Tuition hath been, or shall be, so disposed or advised as aforesd.; shall and may take unto his and their profession to the use of Such Child and Children the Profits of all Lands, Tenements and Hereditaments, and also the Slaves, Goods, Chattels and personal Estate of such Child or Children and may bring such Action or Actions in relation thereunto, as by Law a Guardian in Common Socage might do; Provided always, that nothing herein before Contained shall Extend to Discharge any Apprentice from his Apprenticeship. And the Supreme Court of the District or Court of the County wherein Such Guardian Shall reside respectively, upon Complaint to them made of Such Guardian abusing the Trust reposed in him by misusing the Child or Children so Committed to his Tuition as afd., in being about or intending to Marry Such Child or Children in Disagreement, Neglecting the Care of their Education, Suitable to their Estate or wasting, Converting to his own use, or otherwise mismanaging Such Estate, to make and Establish from time to time Such Rules and Orders for Placing Such Child, or Children under the Care and Tuition of any other Person or Persons Securing the Estate, and for the better Education and usage of Such Child or Children as they in their sd. Discretion shall judge meet & necessary.
I. And be it further Enacted by the Authority aforesd., That the Supreme Courts and County Courts of this Province within their respective Jurisdictions, have and Shall have full power and Authority from time to time to take Cognizance of all matters Concerning Orphans and their Estates, and to appoint Guardians in Such Cases where to them it shall appear necessary and shall take good Security of all Guardians by them to be Appointed, for the Estates of the Orphans by them Committed; and if any Court shall Committ an Orphans Estate to the Charge or Guardianship of any person or persons without taking good and Sufficient Security for the Same, the Justice or Justices Appointing Such Guardian Shall be liable for all loss and Damages Sustained by the Orphan for want of Such Security being taken, to be recovered by Action at the Common Law in any Court of Record in which the Same is Cognizable in the Suit of the Party grieved. Provided always, That where the Securities were good at the time of their being taken or Accepted, but afterwards became Insolvent, in Such case the Justice or Justices shall not be liable.
II. And be it further Enacted, That the Bond to be given by any person or persons appointed Guardian as aforesd.; shall be made paiable to the Justice or Justices present in Court and Granting Such Guardianship, the Survivors or Survivor of them, their Executors and Administrators in trust for the benefit of the Child or Children Committed to the Tuition and Care of such Guardian, which Bond such Court shall cause to be Acknowledged before them and Recorded; and that in the Name of the Justice or Justices to whom the Same is made paiable, the Survivors or Survivor of them, their Executors, and Administrators, any Person or Persons injured, may and shall at his, her or their Costs and Charges, Commence and prosecute a Suit against Such Guardian and his Securities, Executors or Administrators, and shall and may recover all damages which he, she or they have Sustained by reason of the breach of the Conditions hereof. Provided always, that if any Verdict or Judgment shall pass for such Guardian or his Sureties, the person at whose Instance such suit shall be commenced or prosecuted shall pay Costs.
III. And be it further Enacted by the Authority aforesd., That where a Guardian shall be appointed to any Orphan by any Supreme or County Court Such Guardian shall at the next Court after his appointment, Exhibit an Account upon Oath of all the Estate of such Orphan which he, or she, shall have received into his or her hands or possessions, and every Guardian heretofore or hereafter to be by any such Court appointed, shall Annually Exhibit his Account and State of the Profits and Disbursements of the Estate of Such Orphan upon Oath; and such Account to be Exhibited, shall be Entered by the Clerk in particular Books, to be provided and kept for that purpose only. And when the said Courts shall know or be Informed that any Guardian or Guardians by them respectively appointed, do waste or convert the money or Estate of any Orphan to his or their own use, or do in any manner mismanage the Same, is about, or intended to marry him or her in disparagement or neglects to Educate or maintain any Orphan According to his or her Degree and Circumstances; or where Such Guardian, or his Securities are likely to become Insolvent Such Court shall have power from time to time to make and Establish Such Rules and Orders for the better Ordering Managing and Securing such Estate and for the better Educating and Maintaining such Orphans, or to appoint another Guardian as they Shall think fit and Convenient.
IV. And be it further Enacted, That every Guardian, Executor or Administrator as Soon as Conveniently the Same may be done, shall by order of the County Court cause the Sheriff to Sell and dispose of all Goods and Chattels of his or her Ward as are or may be liable to perish, Consume or be the worse for using or keeping, (Except in the Instances hereinafter mentioned), for the most that can be got for the same by Public Sale, in Reasonable Lotts, and Shall for Enhancing the price thereof give Six Months Credit upon good Security given, for which service the Sheriff shall be allowed by the Court so as Such Allowance does not exceed two and a half p. Cent; And Such Guardian after the time of Such paiment is past shall take and pursue all lawful ways and means to receive and recover the money upon pain of being answerable for the Same: And if the Same cannot be received, before the Orphan entitled to receive such Money shall have a right to Demand it, or such Guardian shall be removed from his Guardianship, he or she shall and may assign such Bond to such Orphan, and such Assignment Shall Discharge Such Guardian for so much against him, or her, or them. And where the Profits of any Orphans Estate shall be more than Sufficient to maintain and Educate him, or her the Guardian of such Orphan, shall lend the Surplus and all other Sums of money in his hands belonging to such Orphan upon Bond and good and Sufficient Securities, to be repaid with Interest; which Interest such Guardian shall Account for Annually, and where the person or persons to whom such money shall be lent or their Securities are likely to become Insolvent, Such Guardian shall use all lawful means to enforce the repaiment thereof; on pain of being liable for the Same as aforesaid: and an assignment of such last mentioned Bond in either of the aforementioned Cases, Shall Discharge such Guardian for so much as is Specified in the Condition thereof.
V. And be it further Enacted, That where any Orphan shall have land and a Sufficient number of Slaves to Cultivate and improve the Same, Such Slaves unless otherwise ordered by the County Court Shall be employed on the Lands and Plantation of such Orphan; and all Horses, Cattle, Sheep, and Hoggs, shall be kept upon such Lands and Plantations, untill such Orphan Comes of Age, and he or she shall have the benefit of the Increase, and shall sustain the loss if any shall happen. Provided, nevertheless, that if any such Stocks grow too numerous, or if it will be to the advantage of such Orphan, his or her Guardian shall and may sell by order of the County Court, such padt of such Stocks as Such Court shall think fit. And all Plate shall be preserved and delivered to such Orphan when at Age in kind, according to weight and Quantity.
VI. And be it further Enacted, That no Guardian shall let or farm out any Land belonging to any Orphan for a Longer term than the Orphan be of Age, or in other manner than by lease in writing; And that Special Care be had that the Tennant shall improve the Plantation, and that he or she keep the Houses, Orchards & Fences thereon, or that shall be erected on the Same in good and sufficient repair, and leave the same so at the Expiration of Such Lease, and that Provision be made in Such Lease for preventing all kind of waste and Employing any Timber to any other use than the immediate use of the Plantation.
VII. And be it further Enacted, That if the Guardian of any Orphan shall suffer his or her Land to lapse or become forfeited for non-payment of Quitrents such Guardian shall be liable to answer the full value of the Lands as forfeited unto such Orphan at his or her coming of Age. And if it shall so happen that any Orphan Shall not have Slaves to Cultivate his or her Land, and the Guardian of such Orphan cannot rent the same for Sufficient to pay and Discharge the Quitrents thereof, and there shall not be personal Estate Sufficient for that purpose, it shall and may be lawfull for such Guardian with the Consent and Approbation of the County Court, Annually to Sell and Dispose of, or use so much of the Lightwood, to Box so many Pine Trees, or to sell so much of the Timber on the same, as shall raise sufficient to pay and Satisfie the Quitrents thereof and no more.
VIII. And be it further Enacted by the Authority aforesaid, That the Justices of every County Court in this Province respectively, shall on the first day of the Court that shall be held next after the first Day of January in every year, or if no Court be then held, on the first Day of the next, Succeeding Court, hold an Orphans Court for the purpose aforesd., and every person heretofore Appointed, or that Shall hereafter be appointed Guardian to any Orphan by any Court, or by Deed or Will as aforesd., shall exhibit Such Account as aforesd., and the Justices of every Court shall at the same Court Examine into all Accounts of Guardians so to be Exhibited to them, and shall Direct a Summons to Issue returnable to their next Court against all Guardians who shall then fail to appear and render such Account, whether such Guardian be resident in the Same or any other County: and Shall then also enquire into the Abuses and mismanagement of Guardians and whether they or their Securities are likely to become Insolvent, and thereupon to proceed according to the power in this Act before given. And if any such guardian, shall wilfully neglect after being summoned as aforesd. to appear, obstinately refuse to Exhibit such Account it shall and may be lawful for the Court to Issue an Attachment for Such Contempt, and to Commit such Guardian, until he or she shall Exhibit such Account. Provided always, that nothing herein before Contained shall be Construed to restrain the Power of the County Courts, in inquiring as often as they shall think proper into the abuses and mismanagement of Guardians, but that it shall be lawfull for them to Execute such power at any time or times, when to them it shall Appear necessary, anything in this Act Contained to the Contrary notwithstanding.
IX. And be it further Enacted, That the Church Wardens of every Parish in this Province shall annually at the Orphans Court to be holden for their Counties respectively, present to the Justices thereof, upon Oath in Writing the names of all Orphans, Children within their Parish, that they shall know have not Guardians appointed them and are not bound out to some Trade or Employment, and all abuses, mismanagements and neglects of such Guardians as live within their Parish.
X. And be it further Enacted, That the Justices of every County Court and the Church Wardens of every Parish respectively, who shall fail or neglect to do their Duty herein, shall foreit and pay the Sum of Ten Pounds Proclamation money each, one half to our Sovereign Lord the King, his Heirs and Successors to and for the use of the County wherein such neglect or failure shall be, and the other half to the Informer, to be recovered by Action of Debt, Bill, Plaint or Information, with Costs in any Court of Record.
XI. And be it further Enacted by the Authority aforesd., That it shall be lawfull for every Guardian to Charge in his Account, all reasonable Disbursements and Expences; And if upon rendering such Account it shall appear to the Court that such Guardian hath really and bona fide disbursed more in one year than the Profits of the Orphans Estate do amount unto for the Education and maintenance of the Orphan Such Guardian shall be allowed & paid for the Same out of the Profits of such Orphans Estate in any other year. Provided always, that such Disbursements be in the opinion of such Court, suitable to the Degree and Circumstances of the Estate of such Orphan: And that where such Estate shall be of so small value that no person will Educate or Maintain him or her for the Profits thereof, Such Orphan shall by direction of the Court be bound apprentice, every male to some Tradesman, Merchant, Mariner, or other person, approved by the Court, until he shall attain the Age of Twenty-one Years, and every Female to some Suitable Employment, till her Age of Eighteen Years, and the Master or Mistress of every Such Servant shall find and provide for him or her Diet, Cloaths, Lodging, and Accommodations fit and necessary, and shall Teach, or Cause him or her to be Taught, to read and write, and at the Expiration of his or her Apprenticeship shall pay every such Servant the like allowance as is by law Appointed for Servants by Indenture or Custom, and on refusal shall be compelled thereto in like manner; And if upon Complaint made to the County Court it shall appear that any such Apprentice is ill used, or not Taught the Trade, Profession, or Employment to which he or she was bound, it shall be lawful for such Court to remove and Bind him or her to such other person or persons as they shall think fit.
XII. And be it further Enacted, That the binding of such servant by Order of Court as aforesd: Shall be by Indenture made in the name of the presiding Acting Justice of the Court and his Successors of the one part, and of the Master or Mistress to whom he or she shall be bound of the other; which Indenture shall be Acknowledged or proved before such Court and Recorded and a Counterpart thereof, shall remain and be kept in the Clerks office, for the benefit of such Servant; and that any person or persons Injured, may and shall at his or her costs and Charges prosecute a Suit thereon in the name of Such Justice, or his Successor, and recover all Damages which he or she may have sustained by reason of the Breach of the Covenants therein Contained. And if any Verdict or Judgment Shall pass for such Master or Mistress, he or she shall recover Costs.
XIII. And be it further Enacted by the Authority aforesd., That where any person who now is or hereafter shall be Security for the Estate of any Orphan, shall conceive himself in danger by reason thereof, and Petition the Court where such Security was entered into for Relief, it shall be lawful for such Court upon Petition to them Exhibited, forthwith to Order Summons to issue against the Party or Parties with and for whom the Petitioner Stands bound, returnable to the next Court, and thereupon to compell Such Party or Parties to give sufficient other or Counter Security, to be approved by the said Court or to Deliver to the Said Estate to the Petitioner or Such other person as the Court shall direct, or they may and are hereby impowered to make such other order or Rule therein for Relief of the Petitioner and better Securing such Orphan's Estate as to them shall appear just and equitable. Provided always, that such Court shall take good and Sufficient Security of the Person or Persons to whom such estate shall be so Committed in like manner and under the like penalty as is by this Act required, to be taken of Guardians Appointed by the Court and every such Person shall also Exhibit his Account and be Subject to the Rules and Orders of the Court in the same manner to all Intents and purposes as is herein before required of Guardians or they are made Subject unto.
XIV. And be it further Enacted by the Authority aforesd., That all Legacies, Filial Portions, distributive Shares of Intestates Estates, Sum or Sums of money, or other Estate, due or owing from any Person appointed Guardian to any Orphan from any Executors or administrators, Shall and may be recovered by Petition to the Supreme Court of the District or any County Court; and that in all Suits by Petin. as aforesd.; in the said Courts respectively, the following rules and methods shall be observed, to-wit:
The Petitioner shall file his Petition in Court, upon Exhibiting the same, and thereupon a Summons shall be Issued by the Clerk of Course; and that upon the Defendants being served therewith, and with a Copy of the said Petition, he shall appear and put in his Answer or Plea upon oath or Demur.
That upon an Answer, Plea, or Demurrer being filed as aforesd., the Pet'r may move the Court to have the Same Set for hearing and immediately Argued, and thereupon the Court shall proceed to hear and Determine the same according as the matter in Equity and Law shall appear to them, without regard to form or want of form in the Petition Process, or Course of Proceedings.
That upon the Defendant being served with a Summons and Copy of the Petition Ten Days before the Court to which such Summons is returnable and Oath made thereof; if he Shall fail to Appear and Plead, Answer, or Demur as aforesd., the Pet'rs Petition shall be taken pro confesso, and the matter thereof decreed Accordingly with Costs, unless on Special Reasons Shewen to and Aproved of by the Court, time shall be Allowed Such Defendant to file such Plea, Answer or Demurrer.
That upon the Petr. dismissing his Petition, or the Same being dismissed for want of prosecution he shall pay Costs.
And if any Defendant shall appear on such Summons, and shall Obstinately refuse to answer the Petition of the Petr., the same shall be taken pro Confesso and the matter decreed as aforesd.
Every Defendant shall be at liberty to Swear his Answer or Plea before any Justice.
That when a Plea or Demurrer Shall be overruled the Defendant shall file his Answer the same Court.
That when the Petitioner shall be minded to disprove the answer of the Defendant and Support his Claim he may reply.
Commissions to Examine Witnesses may be Awarded by the Court after Replication filed.
The Party taking out such Commission giving the adverse party Ten days Notice of the time and Place of Executing the same.
And that upon a Decree being made on any such Petition, it shall and may be lawfull for the Court who shall make the same, to grant Execution against the Defendant's Body, Goods, and Chattels, Lands and Tenements, for Satisfying such Decree and Costs; any Law, Usage or Custom to the Contrary notwithstanding.
XV. And be it further Enacted by the authority afores'd, That when any person Shall conceive himself Injured or aggrieved by the Order or Sentence of any County Court in appointing a Guardian to any Orphan or in removing any Orphan from the Care and Tuition of any person who has been appointed such or on refusing to make Such appointment or removal as afores'd, he may appeal from Such Order or Sentence to the Court of Chancery of this Province or to the Supreme Court of the district at his Option, and the Party praying Such appeal Shall fyle a Copy of the proceedings of the County Court therein with the Clerk of the Chancery or Clerk of the Supreme Court, as the Case may be, fifteen Days before the Sitting of Such Court, and thereupon it Shall and may be lawful for the Court to which Such appeals is made to proceed to rehear the matter and either affirm or reverse Such Order or Sentence, and thereupon to award Execution for all Such Costs and Charges as Shall be occasioned by Such appeal. Provided, nevertheless, that the Party praying Such appeal before the Same Shall be granted by the County Court enter into Bond with Sufficient Security for prosecuting Such Appeal with Effect, and the payment of all Such Costs and Charges as Shall be awarded against him in Case he Shall be Cast in his said appeal. Provided Also, that nothing in this Act contained Shall be Construed to restrain or abridge the Power of the said Court of Chancery in any matter or thing relating to Orphans or their Estates, but that it Shall and may hold, use and exercise and enjoy the Same Jurisdiction, powers and Authorities therein in as full and ample manner to all intents and purposes as if this Act had never been made, any thing herein Contained to the Contrary notwithstanding.
XVI. And be it further Enacted by the Authority afores'd, That an Act of Assembly Intitled An Act Concerning Orphans, and all and every other Act and Acts, Clause and Clauses thereof, heretofore made for or Concerning any matter or thing within the purview of this Act, Shall be and are hereby from henceforth Repealed and made void.
XVII. And be it further Enacted by the Authority afores'd, That this Act Shall be, Continue and Remain in full force and Virtue for and During the Space and Term of Five Years from the passing thereof, and from Hence to the End of the next Session of Assembly, and no longer.