20 N.J.L. 563

This was a Certiorari to the sessions of Somerset, to bring up an order of removal by two justices; and which order had been affirmed on appeal. The pauper--a black girl, called Sarah Brocaw--was born on the 25th of February, 1819, at the house [page 564] of John A. Autun, now deceased, in the township of Bridgewater, in the county of Somerset, and was the child of a female slave of Autun. She remained the servant of Autun, in Bridgewater, until the 29th of July, 1823, when a certain writing under seal, purporting to be an indenture of apprenticeship of the child, was executed by and between Autun her master, and one Margaret McCain, also of Bridgewater. The pauper served Margaret McCain, in Bridgewater, from that time until the 12th of June, 1839, when Mrs. McCain sold her time of service under the supposed indenture of apprenticeship, until twenty-one years of age, to one Bergen Brocaw, of the said township of Franklin, in the same county, for $65. The pauper then went to live with Brocaw, in Franklin, and there served him till she became twenty one years of age.

There was an admitted mistake as to her age. She was one year older than was mentioned in the supposed indenture of apprenticeship. The mother remained and died the slave of Autun.

An order of removal of the pauper was made, charging the township of Franklin, which order was affirmed by the Court of General Quarter Sessions of the Peace of Somerset.

J. C. Elmendorf for Franklin.

The pauper was born in the township of Bridgewater. She served her master Autun and Mrs. McCain for many years, in the same township, and that township was unquestionably chargeable as her place of settlement, unless she subsequently gained a settlement elsewhere. It would have required a service of seven years in Franklin to change her settlement to that township.

The statute, Elm. Dig. 405, defines the mode of gaining a settlement, but this act was passed in 1774, long before this class of servants was known. This class can gain no settlement unless under some other provision, the act not being intended to provide for the children of slaves. There is no mode of binding children of this class provided, except by overseers. The indenture is invalid and no settlement can be gained under it by a service for one year.

By the 18th section of the original act, Elm. Dig. 410, autho-[page 565]rity is first given to the overseers, with the assistance and advice of two justices, to bind poor children; but this referred to free persons, and not to the children of slaves. The abolition act, passed the 15th of February, 1804, to be found in Bloomfield's Compilation 103, was repealed and supplied by the act of the 24th of February, 1820. Elm. Dig. 525. All born after the 4th of July, 1804, being declared free, provision was necessary in regard to the settlement and maintenance of such as should become paupers. By the act of the 10th June, 1820, Elm. Dig. 416, 417, provision was made for the case of the children of slaves, born after the 4th of July, 1804, not bound out by overseers of the poor; who, after the males should arrive to the age of twenty-five and the females to the age of twenty-one years, should be deemed settled in the township or place where they were born. Under the proviso, they would gain a settlement in the same manner as whites, with the further provision, by way of proviso, that a service for the space of seven years with his or her master or mistress, should give a settlement. By the next section of the same act, children of slaves born free, if bound out to service by trustees or overseers of the poor, according to law, shall obtain a settlement under any such binding, in the same manner as other persons bound by indenture under the first section of the act of 1774. There is no provision made for binding by the master, and there is found no authority for binding this class, except in the enactments referred to. In this case there was no indenture, the instrument was void as an indenture, and there could therefore be no service under it. Elm. Dig. 12; 1 Halst. 169. The service in Franklin, therefore, not being for the space of seven years, no settlement was gained under it, and the order was erroneous.

W. Thompson, contra.

CARPENTER, J. delivered the opinion of the court.

The place of birth is, in ordinary cases and prima facie, the place of settlement. Children follow the settlement of their parents. In the peculiar case of the children of slaves, born since the 4th day of July, 1804, provision has been specially made by statute. By the 1st section of the act for the gradual abolition of slavery, Elm. Dig. 525, such child "shall be free, but shall [page 566] remain the servant of the owner of his or her mother, and the executors, administrator or assigns of such owner, in the same manner as if such child had been bound to service by the trustees or overseers of the poor; and shall continue in such service, if a male, until the age of twenty-five years, and if a female, until the age of twenty-one years." By the 6th section of the act of the 10th of June, 1820, Elm. Dig. 416, 417, such children "who have not been bound out to service by trustees or overseers of the poor, according to law, shall after the males arrive to the age of twenty-five, and the females to twenty-one years, be deemed settled in the township or place in which they were born;" and the second proviso of the same section declares, that "any such male or female children of slaves shall obtain a legal settlement in the city, borough, township or precinct, in which such servant shall first serve, with his or her master or mistress for the space of seven years; and if afterwards such servant shall duly serve in any other place for the space of seven full years, such servant shall obtain a legal settlement in the city, &c., where such service was last performed, either with his or her first master or mistress, or with any other master or mistress, by virtue of a legal transfer of such servant." Such are the provisions of the statutes, which regulate and ascertain the settlement in this case, unless there has been a service under an indenture of appenticeship, which it appears in case of this class can only be by trustees or overseers of the poor. If bound by trustees or overseers of the poor, then, by the 7th section, Elm. Dig. 417, a settlement may be obtained under any such binding, in the same manner that other persons bound by indenture would obtain the same, under the first section of the act of 1774; that is to say, by service under such binding for one year. But the indenture, so called, is certainly not good as an indenture of apprenticeship, whatever it may be considered as an assignment of the right of service. The master having no authority to bind, it can be treated in the most favorable light, only as an assignment of the right of service; but certainly did not bring the service within the provision, by which, service under binding of a certain character for one year gives a settlement. The pauper, not having been bound out to service by trustees or overseers of the poor, according to law, and having [page 567] arrived to the age of twenty-one years, must be deemed settled in Bridgewater, where she was born. Besides, having duly served the owner of her mother, and his assignee Mrs. McCain, in the same township, for more than seven years, she further obtained by this service a legal settlement in Bridgewater; and is still chargeable to that township, unless a subsequent settlement has been obtained elsewhere. This does not appear. Her service in Franklin, under the second transfer of her services, was for a period much less than seven years, and her settlement in Bridgewater remains unaffected and unchanged. The order of removal was erroneous and with its affirmance in the sessions on appeal must be quashed.

HORNBLOWER C. J. and NEVIUS J. concurred.