Daily clarion and standard. [volume] (Jackson, Miss.) 1866-1866, 1866-07-11
DECISIONS OF THE HIGH COURT,
OF
ERRORS AND APPEALS.
Jack, Freedman,
VS..
Jesse Thompson.
Appeal from the Probate Cont Of Go
Diah County

vs..
Jesse Thompson.
appeal from the Probate Cont Of Co
Diah County.
OPINION OF THE COURT DELIVERED BY
JUDGE HARRIS.
Under the provisions Of the act OF /
the Legislature of this State, passed
on the 22d of November, 1863, to
regulate the relation Of master and ap-
prentice. the sheriff Of COpiah county
reported appellant to the Probate
Court Of said county as an orphan
freedman. under the age Of eighteen
wears, with no one to provide for him,
and thereupon the Probate Court,
without notice to appellant, and with
out his appearance, in his absence,
made an order directing the Clerk Of
said Court TO apprentice said appel
liant to Jesse Thompson, his former
owner, until he should arrive at the
age Of twenty-one years, at certain
yearly hire, to be paid to appellant at
the expiration Of his minority, upon
the said Thompson executing bona
!. according to the provisions OF the
statute
Afterward, during the same term OF
said Court, appellant by his next
friend came into Court and made his
motion to set aside said order and pro
ceedings had thereon. First, because
the said appellant, at the date of said
report by the sheriff, was nineteen
years old instead of seventeen, as re
ported by said shorthand adjudged by
said Court Second, because appel
liant had no notice Of said report, or
Of the proceedings in the Probate
Court Third, because no guardian,
qd HteD was appointed by said Court
to protect his interests pending said
proceeding
This motion was oYerruled by the
Court, and from the judgment Of the
Court overriding said motion, this APP
peal is prosecuted.
The question presented for our de
termination is, whether it is cOmpe-
tent for the Court Of Probates, under
the act Of the Legislature, to order its
Clerk to apprentice an orphan freed
man without his presence and without
notice to him.
The act does not require this notice,
and doubtless the court below, look
| inc to the act of the Legislature as the
source and measure Of its duty, as well
as of its power, for this reason deemed
it unnecessary.
But the principle is universal, that
| no Judgment, order or decree Is valid
or binding upon a party who hes had
| no notice Of such proceeding against
! him. The court must not only have
| jurisdiction Of the subject matter, but
also of the person, to give validity to
its final judgments, orders and DEGREES.
And it is not in the power Of the Leg
islature. under our Constitution, to
dispense with this notice, either actual
or constructive.
In the case before us, it was the duty
of the Probate Court, upon the report
of the sheriff, to order a citation re
| curing the appearance Qfthe appellant
at a day To be therein appointed, both
for the purpose of enabling the court
to ascertain and discharge its duties
and for the purpose of giving the or
phan or minor an opportunity of be
| ing heard before his rights are con
Guided, The court by the act is made
the guardian of the interests of these
! wards t must first be satisfied that
the minor or orphan before it is un
| der eighteen years old. 1t must next
in the absence Of record testimony
| showing the age of the minor or or
I phan, ascertain III the best manner Il
NAV, and fix the age Of the said minor
or ward, so that he period of his ser
| vice NAV be fixed and definite, and not
uncertain 1t must, in the case of a
minor whose parent or parents are Inv
ing, ascertain whether they have not
| the means or whether they 'refuse
| to provide for and support said mi
nor" 1t is to look to the character
| and ability Of the master, and "have
particular care to the interest of the
minor" or orphan-that he is a suita-
bic person, giving preference to the
! former owner Of the minor or orphan,
| when in the opinion of the court, he or
she be a suitable-person for that pur-
pose In all these matters the ward
has a direct and deep interest, and has
right to be heard by the court, who
is thus constituted his peculiar guar
dian. as well as the guardian of the
interests of the public in this respect
1t is further the duty of the court tc
fix such s.terrns," as to hire, or com
| nensation for the service of said ward
as the Judge, under the responsibility
of his oath of Office, as well as the pc
cuIiar trust and confidence reposed il
him bv the statute, may deem reason
able and just to both the master anc
the apprentice. And in this, the ware
has also a direct interest, and has the
RIGHT to be heard for the purpose o
aiding the Judgment of the court il
the discharge of its several duties fo-
the benefit of the ward.
The necessity of notice, and the ap
pearauce of the ward in court, to en-
able the Judge understandingly, to FL
the precise age of the ward, so that ht
may not he deprived of his freedom
when he arrives at twenty one years
of age, and also to determine from hi
age, size and qualifications, the value
of his services by way of hire, is OBJ
| vious from an examination of the act
1t is urged that after service Of no
tice on the minor or orphan, and be
fore further action, the court should
have appointed a guardian ad ttsm IN
der article %, page 431 of the code
The act of the Legislature referred
to, has relation to matters of litigation
involving the settlement of estates OF
| pecuniary interests, when the court il
its judicial capacity must determine Tho
conflicting rights of the parties befor,
it. and therefore could not be properly
or consistently charged with the duty
of representing the interests OF the in
FAINT litigant In such cases, (wher,
there is no guardian. or he is interest
ed. or absent) the statute requires thC
| appointment of guardian al Item
But in the case before us, the statute
specially charges the court with the
duty of protecting the interests of til,
ward. and hence no guardian is nee
essary.
Let the order and Judgment of tht
court below be reversed, and cause re
handed for further proceeding to thi:
opinion.
A RgMAREABLE CAsE.-Hy iropho.
bia is usually inferred 10 be communi
Gated from the saliva secreted in the
glands at the root of the teeth Of g
rabid dog There was q young man
at Monayunk who died on Sunday