
    Joseph Cornelius, Appellant, v. Thomas Cohen, Appellee.
    APPEAL FROM ST. CLAIR.
    An indenture by a free negro woman entered into in 1804, and not signed by the master is void. The thirteenth section of the act of 1807 does not embrace cases whore the master and servant did not agree upon the time of service before the clerk.
   Opinion of the Court by

Justice Lockwood.

This is an action of replevin brought in the circuit court of St. Clair county, for the recovery of Betsey, a negro girl. The facts of the case are, that on the 6th October, 1804, Rachael, a free negro woman aged twenty-three, entered into a writing (purporting to be an indenture) with the plaintiff, by which she binds herself in the common mode of apprenticeship, to serve the plaintiff for fifteen years. In the indenture, the master binds himself to allow the apprentice meat, drink, lodging, and wearing apparel fit for such an apprentice. The indenture is signed and sealed by Rachael only. It was admitted on the trial that Rachael was the mother of Betsy, who was born in the fall of 1805.

On the trial of this cause the defendant moved the court to instruct the jury that the plaintiff had no right to the negro girl by virtue of the indenture.

2. That if the plaintiff had a right to her services by virtue of the indenture that replevin would not lie.

3. That the indenture was void because it was not executed by plaintiff. These instructions the court refused to give, with the reservation that if the court should, after the trial, be of opinion that they ought to have been given, that a non-suit should be entered.

The circuit court subsequent to the trial, decided that the instructions prayed for ought to have been given to the jury, and ordered judgment of nonsuit to be entered, from which decision the plaintiff prayed an appeal.

From the view taken of this case it will only be necessary to examine whether the indenture given in evidence was a valid one. This indenture was executed the sixth of October, 1804, and on the 17th September, 1807, the territory of Indiana passed an “Act concerning the introduction of negroes and mulattoes into this territory.” The first section of this act authorizes the owners or possessors of slaves to bring them into the territory. The second section authorizes the master to go with the slave before the clerk, and agree with the slave for the term of years the slave shall serve, &c., and the clerk shall make a record, &c. The thirteenth section of this act was the only one relied on in the argument as securing the services of Betsey to the plaintiff. That section is as follows:

“ That children horn in this territory of a parent of color owing service or labor by indenture according to law, shall serve the master or mistress of such parent, the male until the-age of thirty, and the female until the age of twenty-eight years.”

The first and second sections of this act are clearly prospective, and can have no application to this case. Whether the legislature, by the thirteenth section, intended by the words “ by indenture according to law,” to provide for the children of slaves bound to serve for a limited period under the second section, it is difficult to determine; but whether such was their intention or not, the result will be the same. If it be admitted that such was the intention, the children of Rachael can not by any construction be embraced by it.. Because Rachael and the plaintiff did not go before the clerk and agree for her services as the act directs, and the indenture admits that she was free before the passage of the act.

The claim to the services of Betsey under the thirteenth section is equally inadmissible. The indenture was not executed according to law. The indenture to have been valid, as between Raphael and the plaintiff, ought to have been executed by plaintiff. It is therefore void.

The judgment must be affirmed with costs.

Judgment affirmed,. 
      
      
         16 Johns. Rep., 47.
     