The State Records of North Carolina - Volume XXV - Pages 415-422
I. Whereas, the greatest part of the Estates in this Province belonging to Orphans are of so inconsiderable value that an application to the Court of Chancery in many instances will occasion an expence which the profits of them are not Sufficient to defray: And it having been found by Experience that the Court of each respective County exercising the power of regulating the Education of Orphans, and the Management of their Estates, hath proved of Singular Service to them;
II. Be it therefore Enacted by the Governor, Council and Assembly, and 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 lawful to and for the father of such Child, or Children, whether born at the time of his Death or in Ventre Samere, 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 or Children as Guardian, in Soccage, and all other wise, 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 neverthelss, 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 Superior or Inferior 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 Tuition and Custody hath been, or shall be, so disposed or devised as aforesaid, shall and may take into his and their possession, for 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 Soccage might do.
Provided always, that nothing herein before Contained shall extend to discharge any Apprentice from his Apprenticeship, and the Superior Court of the District, or the Inferior Court of Pleas and Quarter Sessions 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 aforesaid, in being or intending to marry such Child or Children in disparagement, 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 discretion shall judge Meet and Necessary.
III. And be it further Enacted by the Authority aforesaid, That the Superior Courts and Inferior Courts of Pleas and Quarter Sessions 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 commit 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 the 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 at 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.
IV. And be it further Enacted, That the Bond to be given by any person or Persons appointed Guardian as aforesaid, shall be made payable to the Justice or Justices present in Court, and granting such Guardianship, the Survivors or Survivor of them, their Executors or 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 said Bond was made Payable the Survivors or Survivor of them, their Executors or 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 Condition thereof.
Provided, always, that if any verdict or Judgment shall Pass for such Guardian or his Securities the Person at whose instance such Suit shall be commenced or prosecuted shall pay Costs.
V. And be it further Enacted by the Authority aforesaid, That when a Guardian shall be appointed to an Orphan by any Superior or Inferior 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 possession. 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 Accounts so 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 Education and maintaining such Orphans or to appoint another Guardian as they shall think fit and convenient.
VI. And be it further Enacted, That every Guardian, Executors or Administrators, as soon as conveniently the same may be done, shall by Order of the Superior or Inferior Court of Pleas and Quarter Sessions, cause the Sheriff to sell and dispose of all the Goods and Chattels of his or her ward as are or may be liable to perish, consume, or be the worse by using or keeping (Except in the instances herein after mentioned) for the most that can be got for the same by public sale in reasonable Lots, and shall for enhancing the price thereof give six months credit upon goods secured, given for which service the Sheriff shall be allowed by the Court, so as such allowance does not exceed two and a half per Cent., and such Guardian after the time of such payment is passed 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, 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 with 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 repayment thereof on pain of being liable for the same as aforesaid, and an Assignment of such last mentioned Bond in either of the last mentioned Cases, shall discharge such Guardian for so much as is Specified in the condition thereof.
VII. And be it further Enacted, That where any Orphan shall have Lands, and a sufficient number of slaves to cultivate and improve the same, such Slaves, unless otherwise ordered by the Superior or Inferior Court, shall be employed on the Lands and Plantations of such Orphan, and all Horses, Cattle, Sheep and Hogs shall be kept up on such Lands and Plantations until 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 stock 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 Superior or Inferior Court, such part of such stock 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.
VIII. And be it further Enacted, That no Guardian shall let, or farm out any Lands 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 Tenant shall improve the Plantation, and that he or she keep the Houses, Orchards and Fences thereon, or that shall be Erected on the same, in good and sufficient repair, and lease the same so at the Expiration of such Lease, and that provision be made in such Lease for preventing all kinds or waste and employing any timber to any other use than the immediate use of the Plantation.
IX. And be it further Enacted, That if the Guardian of any Orphan shall suffer his or her Land to lapse or to become forfeited for non-payment of Quit Rents, such Guardian shall be liable to answer full Value of the Lands so 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 Lands and the Guardian of such Orphan cannot rent the same for sufficient to pay and discharge the Quit Rents thereof, and there shall not be Personal Estate sufficient for that purpose, it shall and may be lawful for such Guardian, with the consent and approbation of the Superior or Inferior 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 of the same, as shall raise sufficient to pay and Satisfy the Quit Rents thereof, and no more.
X. And be it further Enacted by the Authority aforesaid, That the Justices of every Inferior Court of Pleas and Quarter Sessions 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, hold an Orphan's Court for the purpose aforesaid, and every person heretofore appointed, or that shall hereafter be appointed Guardian to any Orphan by any Court or by Deed or Will as aforesaid, shall exhibit such account as aforesaid, 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 aforesaid to appear, or 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 Inferior Courts of Pleas and Quarter Sessions in enquiring as often as they shall think proper into the Abuses and mismanagement of Guardians, but that it shall be lawful 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.
XI. And be it further Enacted, That the Churchwardens 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 Orphan 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.
XII. And be it further Enacted, That the Justices of every Inferior Court, and the Church Wardens of every Parish, respectively, who shall fail or neglect to do their duty herein, shall forfeit 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 with Costs in any Court of Record.
XIII. And be it further Enacted by the Authority aforesaid. That it shall and may be lawful 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 Orphan's Estate do amount unto for the education and maintenance of the Orphan, such Guardian shall be allowed and paid for the same out of the Profits of such Orphan's 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 and maintain him or her for the profit 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 to the Age of Twenty-one Years, and every Female to some Suitable Employment 'till her age of eighteen years, and also such Court may in like manner bind apprentice all free base born children, and every such Female Child being a Mulatto or Mustee, until she shall attain the Age of Twenty-one Years, and the Master or Mistress of every such apprentice shall find and provide for him or her diet, cloaths, lodging and Accommodation, 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 apprentice 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 Inferior Court of Pleas and Quarter Sessions 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.
XIV. And be it urther Enacted, That the binding of such apprentices by Order of Court as aforesaid 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 Clerk's Office for the benefit of such apprentice 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 Successors 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.
XV. And be it further Enacted by the Authority aforesaid, 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 compel such party or parties to give Sufficient other or Counter Securities, to be approved by the said Court, or to deliver up the said Estate to the said Petitioner, or such other Person as the Court shall direct, or they may and are hereby empowered 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.
XVI. And be it further Enacted by the Authority aforesaid, That all Legacies, Filial Portions, Distributive Shares of Intestate's Estates, Sum or Sums of Money, or other Estate, due or owing from any person appointed Guardian to any Orphan, or from any Executors or Administrators, shall and may be recovered by petition to the Superior Courts of the District, or any Inferior Court of Pleas and Quarter Sessions, and that in all suits by petition as aforesaid, and 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 aforesaid, the Petitioner 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 for want or form, in the Petition Process or Course of Proceedings.
That upon the Defendants 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 aforesaid, the Petitioners Petition shall be taken pro confesso and the matter thereof Decreed accordingly with Costs unless on special reasons shewn to and approved by the Court, time shall be allowed such Defendant to file such Plea, Answer or Demurrer.
That upon the Petitioner 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 Petitioner the same shall be taken pro Confesso and the matter decreed as aforesaid.
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 Lawful 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.
XVII. And be it further Enacted by the Authority aforesaid, That when any person shall conceive himself injured or Aggrieved by the order or Sentence of any Inferior 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 aforesaid, he may appeal from such order or Sentence to the Court of Chancery of this Province, or to the Superior Court of the district at his Option, and the party praying such appeal shall file a Copy of the Proceedings of the Inferior Court therein, with the Clerk of the Chancery or Clerk of the Superior 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 appeal 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 Inferior Court, shall 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 his 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 the said Court shall and may hold, use, exercise
and enjoy the same Jurisdictions, Powers and Authorities therein,
in as full and ample manner to all intents and Purposes as if
this Act had never been made; anything herein Contained to the