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Barry v. Sinclair.

fendant appeared, and offered to plead. The plaintiff objected, that the defendant had not given a bond as required by the statute, and therefore could not plead. The court held that the bond was sufficient, and overruled the plaintiff's objection.

The 5th section of ch. 7, of the Revised Code, authorizes the defendant to replevy, by giving to the sheriff a "bail bond." It is true that it does not prescribe that the bond. shall be payable to the sheriff, but it does prescribe a "bail bond." This, as is well settled, must be payable to the sheriff; for, originally, it was for his indemnity alone; although, afterwards, it was allowed to be assigned to the plaintiff for his indemnity, and, by later legislation, to enure to the benefit of the latter, even without an assignment: see Rev. Code, c. 11, s. 2, which gives to the plaintiff a summary remedy thereupon by scire facias.

The bond here may be good as a bond at common law, but it is not such an one as the statute requires; and, therefore, the specific remedy upon it is not that to which the plaintiff would be entitled if it were such, i. e., a bail bond.

We observe that the bond filed in this case is modelled upon that prescribed by Mr. Eaton, in his "Forms," a book of great accuracy, and in very general use. We suppose that his Honor's opinion may have been founded upon that authority. The explanation is, that the phraseology of the statute under consideration has been altered since that work was published.

There is error. This opinion will be certified to the court below.

PER CURIAM.

Exception sustained.

Ferrell v. Boykin.

P. L. FERRELL v. HILLIARD BOYKIN.

An illegitimate free negro child, who has not gained a new settlement by a year's residence in some other county, is, for the purpose of being apprenticed, subject to the jurisdiction of the court of that county in which its mother was settled at the time of its birth.

A master may recover damages of any ore who, after demand made, detains an apprentice.

(The case of Prue v. Hight, 6 Jones, 265, cited and approved.)

TRESPASS ON THE CASE, tried before Shepherd, J., at Fall Term, 1859, of Nash Superior Court.

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 he 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.

Batchelor, for the plaintiff.

Moore, for the defendant.

READE, J. It is plain law that an illegitimate child re

Ferrell v. Boykin.

ceives 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, s. 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, s. 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, 6 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.

The State v. Blagge and Soper.

THE STATE v. S. BLAGGE and JOHN E. SOPER.

Under the ordinance of the 18th of October, 1865, concerning Revenue, a provisional sheriff, who has not given bond as required thereby, is not authorized to demand of merchants an account of their purchases, and of the taxes due from them.

MISDEMEANOR, in not rendering an account of their business, &c., as required by the ordinance of the 18th of October, 1865, concerning Revenue, &c., tried before Warren, J., at Spring Term, 1866, of Craven Superior Court.

The defendants were merchants who had done business in Newbern as partners, from 1863 to 1866, and in January, 1866, they refused to render any statement of their business during 1865, to one Harper, who demanded the same as sheriff of Craven. It appeared that Harper was provisional sheriff, and had given bond as such at the time of his appointment in July, 1865, but had not executed a bond as required by the ordinance.

Other questions were raised as to the power of the State to impose these taxes upon merchants who did business. throughout 1865, in Newbern, but the opinion of the court renders it unnecessary to state the facts in connexion with this matter.

The court below charged the jury that, if they believed the evidence, the defendants were guilty. There was a verdict of guilty and judgment accordingly, from which the defendants prayed an appeal.

The Atto. Gen., also Phillips and Battle, for the State. Manly and Haughton, for the defendants.

READE, J. There were several interesting and important questions very ably discussed in this case. But it is unnecessary, and so would be improper, to decide them, because

The State v. Blagge and Soper.

it appears that, assuming every other question to be in favor of the State, the person who demanded the tax list from the defendants was not authorized to do so, and, therefore, of course, it was not a crime in them to refuse.

The ordinance of the Convention, entitled "An ordinance to provide Revenue for the year 165," ratified the 18th of October, 1865, provides (sec. 23,) that the provisional sheriffs shall assemble the magistrates of their respective counties, and enter into bonds, and "thereupon such sheriffs are empowered to collect the taxes imposed by this ordinance," "Provided, that if such persons referred to as acting sheriffs refuse or decline to enter into the bonds required, then, and in that event, the justices may appoint other persons," &c. It is evident that the Convention did not mean to entrust the provisional sheriffs with the collection of the taxes, unless they gave new bonds. The provisional sheriff in this case did not enter into a new bond as required, and, therefore, he had no right to take tax lists, or to collect the taxes.

It is true that the General Assembly, on the first of March, 1866, (ch. 19, s. 1, Acts of 1865-'6,) enacted that those who were sheriffs at the ratification of that act should collect the taxes under the ordinance, in those counties where the provisional sheriffs had not renewed their bonds. But that does not affect this case, because the refusal of the defendants, for which they are indicted, took place in the January preceding the passage of the act.

His Honor charged the Jury that, if they believed the evidence, the defendants were guilty. In this there was error. And for that error there must be a venire de novo.

PER CURIAM.

Venire de novo.

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