Fourth Generation Inclusive

Haywood Musgrove v. Wm. J. Kornegay, et al., 52 NC 71 (1859).

On a writ of habeas corpus, Simon and Lucretia Musgrove, colored children, were brought into Wayne County Superior Court upon the petition of their father, Haywood Musgrove.  William J. Kornegay, in his defense, presented a deed that Musgrove had executed to Kornegay, purporting to bind the children to him as apprentices.  It appeared that Simon was over twelve years old at the time of the transaction; assented to the binding, but did not sign the deed; and served Kornegay three or four years.  However, Lucretia was only three or four years old at the time and did not assent to the binding in any way.

The court ordered Simon and Lucretia returned to Kornegay, and their father appealed.

The Supreme Court: “A father is entitled to the services of his child until he arrive at the age of twenty-one.” He has a right of property in the child’s services, may enforce them by reasonable correction, and if the child absconds or is taken away, may recover custody by habeas corpus.  However, a father cannot assign this interest to a third person, unless the child is old enough to enter a contract (age twelve at the time) and assents to the assignation by executing the contract with his father. In this case, Lucretia was too young to be sign a contract and should be returned to her father.  And though Simon was more than twelve years old, he did not sign the deed, “the proper order is to discharge the infant and permit him to go where he pleases. Order below reversed. This order will be entered, and judgment against Kornegay for costs.”