have been committed. But it is by no means to be admitted, that a larceny was not committed in relation to this brass pounder. Baron Eyre, defines larceny to be "the wrongfully taking of goods with intent to spoil the owner causa lucri:" and what are the facts in this case? Boughman secretly took and carried away this instrument, for a reward promised him by Munns, as is proved, and concealed, or otherwise disposed of it, so that it was lost to the owner. Whether his intention was to spoil the owner, or to convert the articles to his own use, would be a proper subject of enquiry with the jury upon all the circumstances of the case.

But it is proved by two witnesses, that the plaintiff afterwards acknowledged that Boughman had stolen the pounder, and whether in technical language, he had done so or not, the plaintiff cannot in this action, make it an objection, that in point of strict law, a larceny was not committed.

As to the three drafts of machinery, charged to have been stolen by the plaintiff, it must be admitted that the defendants proeeeded, not only without probable cause, but without any cause at all. It does not appear by the evidence that the defendants even possessed such drafts, and consequently they could not be deprived of them, This charge (which is certainly unfounded) being connected in the same warrant with another which was founded, may or may not have produced injury to the plaintiff; and if, in your opinion, it did so, and was moreover maliciously made a ground of prosecution, the plaintiff is entitled to a verdict, on that account, for such damages as you may think proper.

I shall notice the warrant taken out by the defendants in Delaware, merely for the purpose of observing, that it is not made a distinct ground of charge against the defendants, and is relied upon only as a circumstance to prove malice. Of course, no damages could be given on account of that procedure, even if it had been made without probable cause of obtaining the first warrant, the grounds of suspicion had received additional strength, before the second was granted, the plaintiff having previously acknowledged that the pounder had been stolen by Boughman, brought to him, and afterwards concealed,

The second ground of complaint is, the indictment against the plaintiff, in Delaware, for having received five pieces of parchment, four of them perforated with holes, knowing them to have been stolen. How stands the fact in relation to these articles? It is in full proof, that Peebles, one of the defendants' workmen, employed in their factory, by the plaintiff's procurement, cut from the parchment sieves, belong to the defendants, without their knowledge or consent, a number of pieces of different sizes, which Munns afterwards had in his possession, and which were produced on his trial. And if this evidence required any support, the finding of the bill of indictment, and the agreement of the plaintiff's counsel to pay the costs of that prosecution, which the law excused him from doing, unless a certificate of probable cause was granted, are conclusive upon the point of probable cause, in this part of the case.

Upon the whole, the plaintiff is not entitled to a verdict, as to the two charges, which respect the pounder and the sieves, because, though he should have proved malice to your satisfaction, the defendants have justified themselves, by proving probable cause for those prosecutions. As to the three draughts of machinery, you are to decide, whether that charge was maliciously made, and was productive of injury to the plaintiff.

When the jury returned with their verdict, the plaintiff declin ed to answer, but suffered a nonsuit.

HABEAS CORPUS. PENNSYLVANIA.

AUGUST, 1810.

The Commonmealth, vs. Lambert Smith.

TILGHMAN, C. J. SILVA, a black girl, of the age of fifteen, who has been brought before me on a Habeas Corpus, is claimed by E. L. as her servant, till the age of twenty-eight years. It appears that Silva was formerly the slave of E. B. a French woman, who resided in the island of Cuba. Mrs. B. was one of those unfortunate persons, whom the Spanish Government, from motives of policy, compelled to leave Cuba. She came to Rhode-Island, in the spring of last year; and in the month of August following, arrived in Philadelphia, bringing Silva with her. On the ninth of last August, Mrs. B. executed a deed of manumission of Silva, who, on the same day bound herself, by indenture, as a servant, to Mrs. B. her executors and assigns, for thirteen years, from the date of the indenture. Mrs. B. covenanted to find her sufficient meat, drink, cloathing, washing and lodging. This indenture was executed in the presence of Alderman Douglass, on the 13th July, 1810. Mrs. B. in consideration of two hundred dollars, assigned the indenture to E. L. in presence of Alderman Douglass. Mrs. B. did not come to the United States with a view of settling here; and since the assignment of the indenture, she has gone to France.

It is contended on the part of Silva, that under the circumstances of this case, the indenture is void; because she was entitled to

freedom, immediately upon her importation into Rhode-Island, and therefore, the deed of manumission, in consideration of which, the indenture was given, was useless ceremony, which only tended to deceive her. Several Acts of Assembly of this State, respecting the abolition of slavery, have been introduced into the argument; but I do not think this case will turn upon them. It has been customary for negroes, in Philadelphia, claimed as slaves, by persons being in other states, to bind themselves for different periods, not exceeding the age of twenty-eight years, by way of compromise with their masters: and, although we have no act of assembly, expressly authorising such binding, yet in cases where the right of the master is clear, or even where the law is doubtful, I am not prepared to say, that the indenture is void. It is true, that by the Common Law of England, an infant cannot bind himself for a period beyond the age of twenty-one years. But the Common Law of England, where slavery is not known, is not strictly applicable to the United States, where slavery is permit-. ted by law. It is a sound principle, that an infant may make a contract for his own benefit. Now, nothing can be more to his advantage, than to commute a state of slavery for servitude till twenty-eight years. If such indenteres are void, the consequence will be, that all persons residing in other states, who may find. their slaves in this state, will appeal to the strict law; and if their claim is established, they will take their slaves home, and hold them as slaves for life. These compromises, especially, when: the negro has acted under the direction of the Abolition Society, or any of its members, ought, if possible, to be supported. I have said, that there is no act of assembly, expressly recognizing an indenture to serve till the age of twenty-eight years. But the act for the gradual abolition of slavery, (sec. 13.) does, by necessary inference, affirm the validity of indentures by which an infant has covenanted to serve till twenty-eight years. It seems, from the 12th section of that law, that the Legislature had in view the case of negroes brought into this state from other states, under inden ture. But the words of the 13th section are general, nor do I know that any judicial construction has yet been given, by which they have been restricted to persons brought into this state from

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other places. It is unnecessary, however, to commit myself by an opinion on that point, and therefore, although I have thrown out these sentiments, I give no opinion. Silva was not free by the acts of assembly of Pennsylvania when she executed the indenture, because her mistress did not come to this state with a view of settling in it, nor had she been six months in it, at the date of the indenture. But the case turns upon the act of Congress, passed the 2d of March, 1807. (9 Laws U. S. 262.) Mrs. L's counsel has argued, that upon a fair construction of that act, the mistress's right to the property of the slave, was not affected, because she was not imported for the purpose of being sold within the United States. What the opinion of Congress would have been, had they foreseen a case of this kind, it is impossible to say we must take the law as it is. The title of the act is, "To prohibit the importation of slaves into any port or place within the jurisdiction of the United States, from and after the 1st of January, 1808." Nothing can be plainer than the intent here expressed; and in conformity to it, the first section enacts, that from and after the 1st of January, 1808, it shall not be lawful to import or bring into the United States, or the Territories thereof, from any foreign kingdom or country, any negro, mulatto, or person of colour, with intent to hold, sell, or dispose of such negro, mulatto, or person of colour, as a slave, or to be held to service of labour. The 2d and 3d sections, and first part of the 4th section, inflict penalties and forfeitures for breaches of the law, and the latter part of the 4th section declares, "that neither the importer, nor any person or persons claiming from or under him, shall hold any right or title whatsoever, to any negro, mulatto, or person of colour, nor to the service or labour thoreof, who may be imported or brought within the United States or the Territories thereof, in violation of this law." The only question then, is, was Silva imported in violation of the law? It appears to me, that she was imported clearly in violation of the letter and spirit of the first section. From the facts which have been proved, I must suppose, that she was imported for the purpose of being held by her mistress, as a slave, and she was ac◄ tually so held, from the Spring till August 1809. This being the case, how will the indenture stand? There is no evidence that No. XIII.