St. Clair County IL Archives Court.....Cornelius, V. Cohen 1825
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 2, 2009, 12:53 am

Source: Il Reports 1819-1831
Written: 1825

December Term 1825

Cornelius v. Cohen.

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 where 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 of 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 Betsey, 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 nonsuit 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 born 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 Rachael 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.

Additional Comments:
Reports of Cases at Common Law and in Chancery, Argued and Determined in the
Supreme Court of the State of Illinois, From its First Organization in 1819, 
to the End of December Term, 1831 

By Sidney Breese, Counsellor at Law
Second Edition, with Additional Notes, By Edwin Beecher

Chicago: Callaghan & Company, 1877.


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