
    Richard Thornton vs. William C. Demoss.
    Where a party plaintiff in the circuit court, upon the rejection hy the court of his testimony, suffers a nonsuit, with leave to set it aside during the term, upon the refusal of the court subsequently, to set the nonsuit aside, he cannot prosecute a writ of error thereto.
    Negroes aro prima facie property and slaves; and if it is attempted to assert their exemption from servitude, the mode pointed out-by the statute (How. & Hutch. 166) must be strictly pursued ; and is the only mode in which freedom can be asserted in this State.
    In a suit against a sheriff, to recover of him the value of a negro, whom the sheriff had sold under an execution, and who, it was alleged was free ; the record of a proceeding by habeas corpus of a circuit j udge, in which the negro was adjudged to be a free man, is not admissible in testimony, even though the sheriff had notice of the proceeding, for the reason that the circuit judge had no jurisdiction of the habeas corpus.
    
    On appeal from the circuit court of Hinds county, Hon. John H. Rollins, judge.
    Richard Tho'rnton sued William 0. Demoss in the court below to its October term, 1839, in an action of assumpsit. There were two counts in the declaration, the first alleged, in substance, “ that Demoss, sheriff of Hinds county, on the 17th September, 1838, at Raymond, in Hinds county, offered at public auction, to the highest bidder for cash, a negro boy named Jim, to satisfy executions issued on judgments to one Francis Hume, and then and there undertook that he, the defendant, Demoss, did not know that the said negro boy was not the property of said Francis Hume at the time of the rendition of the judgments aforesaid, or afterwards, and as such, liable to be sold to satisfy said executions; and that plaintiff below, Thornton, confiding in said undertaking of defendant, Demoss, purchased said negro boy, as the highest bidder at the auction aforesaid, for the sum of $730; and then and there, paid the same to defendant, Demoss, as the price of said negro purchased of defendant, Demoss ; and plaintiff, Thornton, avers that the negro boy Jim was not the property of the said Francis Hume at the time of the rendition of the said judgments, or after-wards, so as to be liable to be sold in satisfaction of said executions. And plaintiff, Thornton, furthermore avers, that at the time of the undertaking aforesaid, the defendant, Demoss, did not know that the said negro boy Jim was not the property of said Francis Hume at the time of rendition of the judgments aforesaid or afterwards; by means of all which, defendant, Demoss, became liable to pay plaintiff, Thornton, the said sum of $730, with interest, &c., and being so liable, the defendant promised.
    The second count alleged that “on the 17th day of September, 1838, at Raymond, county of Hinds, the defendant, in consideration that the plaintiff would purchase a certain negro boy named Jim, undertook that he, the defendant, did not know that he had not a good right to sell him the said negro; and the plain-in consideration of said undertaking by defendant, did purchase said negro boy, and then and there paid to defendant $730, the price of said negro; and plaintiff avers that defendant did know, at the time of the undertaking, that he, defendant, had no good right to sell said negro boy; by means whereof, the defendant became liable to pay plaintiff” the sum stated as above, with interest, &c., and being so liable, the defendant promised, &c.
    The defendant filed first a demurrer, but afterwards pleaded non assumpsit; when the cause was continued until the December term, 1842, when the plaintiff was nonsuited; at the same term he moved to set the nonsuit aside, which the court refusing to do, he excepted. The bill of exceptions exhibits this state of facts: After the jury were empanelled, and the plaintiff had introduced proof of the sale of the negro mentioned in the declaration by the sheriff of Hinds county to him, he offered to read the record of the proceedings upon a writ of habeas corpus issued by the Hon. J. R. Nicholson, judge of the then 7th judicial district, which writ was directed to the plaintiff, Richard Thornton, requiring him to produce, before the judge, the negro man James Young, unlawfully held by Thornton in custody. Thornton, as appears by the record, answered the writ, claiming the negro James as his property by virtue of his purchase from Demoss, at the sheriff’s sale. After proof and argument, Judge Nicholson adjudged the negro to be free and entitled to his liberty ; and ordered him to be released from the service of Thornton, and that Thornton should cease to exercise ownership or claim over him, and should pay the costs of the habeas corpus.
    
    The court refused to permit the record of these proceedings to be read to the jury; when the plaintiff’s counsel asked if notice of them were brought home to the defendant, could they be read, and stating also that the writ had been served by the sheriff !s deputy; and the court still refused, upon which the plaintiff submitted to a nonsuit, with leave to move to set it aside at a subsequent day of the term. Accordingly he after-wards moved to set the nonsuit aside, on the ground of error in rejecting the record of the habeas corpus ; the court refused to set the nonsuit aside, and the plaintiff appealed.
    In September, 1838, the appellee, as sheriff of Hinds, sold a certain negro, named Jim, under ajd. fa. against Francis Hume, and the appellant purchased him at the price of $¡750. Some time afterwards, the negro obtained a writ of habeas corpus against the appellant, and on the hearing, the judge decided that the negro was free, and ordered his discharge from the custody of the appellant.
    This action was instituted by the appellant against the appel-lee, for the recovery of damages, on the averment in the declaration that the defendant knew, at the time of the sale, that the negro was not the property of Francis Hume.
    At the trial the plaintiff offered as evidence the proceedings in the habeas corpus case, for the purpose of proving the freedom of the negro, by the record of the eviction; and on objection being made by defendant’s counsel, offered to prove actual notice of the pendency of the case to the defendant. The evidence was ruled out by the court, and the plaintiff submitted to a nonsuit, “with leave to set the same aside at a subsequent day of the term.” A motion to that effect was accordingly made, on the ground that the court had erred.
    
      
      A. L. Dabney, for appellant.
    The record presents two questions.
    1. Did the circuit court err in excluding the record in the ha-beas corpus case %
    
    2. Can the plaintiff prosecute this appeal, after submitting to the nonsuit ?
    On the first point, it seems to be well established, that the record of an eviction is conclusive evidence to prove every fact established by it, against a warrantor, or any person bound to indemnify, who had notice of the pendency of the suit. In the case of Pickett’’s Executors v. Ford, 4 How. 246, this point is fully discussed and decided by the court. The cases cited by the judge who delivered the opinion of the court, fully sustain the principle there decided. And it is recognized in the case of Cartwright v. Carpenter, 7 How. 328. Numerous cases are cited also, in accordance with these, in Cowen and Hill’s Notes to Phillips on Evidence. 3 Phil. Ev. 817, New York edition of 1843. The cases are too numerous and too clear to require comment.
    Had the defendant notice of the pendency of the proceedings on habeas corpus ? It is submitted, that the bill of exceptions sufficiently shows the offer to prove notice, which was prevented by the determination of the court to exclude the record, even with such proof. To be consistent, the court must have prevented the proof of notice as impertinent, unless the admission of the record was to follow.
    Secondly. Was submitting to a nonsuit, in this way, a step which estops the plaintiff from further prosecution of his action ?
    The cases of Ewing v. Glidewell, 3 How, 332, and Copeland v. Mears, 2 S. & M. 519, were of simple, unconditional nonsuits; and this court refused to reverse judgments rendered at the instance of the plaintiffs themselves. And in the last-mentioned case, the court expresses regret that the plaintiff should be precluded from relief, when the merits were clearly with him on the main point in controversy. This case differs with them both in this, that the right of setting aside the nonsuit was expressly reserved with the leave of the court. Taken literally, the court was bound to set it aside, right or wrong; and if we suppose that the leave of the court was merely that the plaintiif might move to set it aside, a case is presented which is not analogous to any which this court has decided. The reasoning of the court in the cases cited, is, that a plaintiif who has voluntarily abandoned his claim, shall not have the aid of this court to undo his own act. But here the plaintiif did not abandon his claim, but expressly reserved it, with the consent of the court. And by the terms of the nonsuit the court undertook to set it aside, if the rejection of the evidence should be deemed erroneous on further investigation. It thus appears, that the circuit court was bound to review its first decision, and might regularly affirm or annul it. Its discretion had-been surrendered; and if its judgment on that review was wrong, an appeal seems to be a matter .of right to the party aggrieved. So the circuit judge appears to have thought, for he granted an appeal from his decision.
    If this point shall not be considered settled by former adjudications, the great convenience of the practice pursued in this case strongly recommends it to the favor of the court. No conceivable benefit can result from compelling a plaintiff to struggle on with a mutilated case, disclosing the strength or weakness of his evidence, and eliciting similar disclosures from the defendant ; when, after all, the plaintiff may be hopeless of obtaining a verdict, before this court shall have corrected the error complained of. Whether he is the victim of error or surprise, a verdict against him offers no advantage over such a nonsuit as this.
    The practice in the English courts is believed to sustain these views. It is there the usual course for the court to nonsuit the plaintiff, with leave to move to set the nonsuit aside. And these nonsuits are not compulsory. The court cannot nonsuit a plaintiff without his consent. 1 Saunders Reports, 195, d., n. /, is explicit on this point. The court may have him called, but he. may insist on his right to submit his case to the jury. See opinion of Grose J. in 2 T. R. 281, and Aylett v. Lowe, 2 W. Black. 1221.
    The declaration contains two counts. The defendant demurred, and afterwards withdrew his demurrer. The first count is evidently defective, but the second is sufficient. The case of Peto v. Blades, 5 Taunt. 660, is precisely analogous, and was sustained by a unanimous decision.
    A suggestion having been made by the court, that the circuit judge who issued the writ of habeas corpus, mentioned in the bill of exceptions, erred in so doing, and that this mode of trying an action for freedom is not authorized by law.
    It is submitted by appellant’s counsel, that the 48th section of the statute concerning slaves, &c. (How. & Hutch. 166,) cannot be taken as exclusive against the broad terms of the statute of habeas corpus. The 10th section, How. & Hutch. 665, gives the benefit of the writ in all cases where any person is confined or restrained of his liberty, without legal authority, “under any color or pretence whatsoever.” It may or may not be true, that the statute, of which this section forms a part', is applicable to free persons exclusively. It is equally applicable to white persons and to free blacks; and the affidavit on which the writ issued seems sufficient, in the preliminary stage of the contest, to entitle him to proceed in that manner.
    
      D. Mayes, for appellee.
    In Mississippi, a nonsuit is voluntary, and this court has repeatedly decided, that a writ of error will not lie by the party who has suffered it. The counsel for the plaintiff contends, that when he suffered the nonsuit, he reserved the right to move to set it aside, and therefore a writ of error will lie. It is not perceived how such a consequence follows. The law gives the party the right so to move without such reservation, and therefore the reservation can effect nothing. If a writ of error will not lie to the nonsuit, a fortiori it will not lie to a refusal to set that nonsuit aside. The nonsuit being voluntarily suffered, a motion to set it aside is addressed to the discretion of the court, and no appeal or writ of error can be maintained to a matter of discretion.
    But the judge properly rejected the record; it was of res inter alias acta, and no notice was given Demoss of the habeas corpus 
      proceeding. Jacob v. Pierce, 2 Rawle R. 204; Turpin v. Thomas, 2 Hen. & Mun. 139 ; Stephen v. Jack, 3 Yerg. 403; Sanders v. Hamilton, 2 Hay. 226; Gridley v. Denny, 1 How. 820. It is evident, from the bill of exceptions, that no evidence to prove notice was offered, but a mere question asked by the counsel, which was, “if proof of notice to the defendant of the proceedings of habeas corpus would alter the decision of the court! and stated that one of the deputies of the defendant had served the process in the record offered to be read.” If this is regarded as a mere conversation between the counsel and court, nothing offered and nothing rejected, no bill of exceptions will lie to this colloquis, for there was nothing judicially determined. If it is to be considered as substantially the offer and rejection of evidence to prove notice, it is evident the proof of notice consisted of the mere fact, that .a deputy of the defendant had executed the writ of habeas corpus. In Jacob v. Pierce, supra, it is decided, that the notice must be personal, and that a copy left at the plaintiff’s residence is not sufficient, it being but a circumstance from which notice may be inferred. In that case, the inference would be reasonable, in the case at bar, unreasonable.
    But if notice to Demoss had been proved, still the record was properly rejected, because there was no proof given or offered that Demoss had sold the negro to Thornton. The bill of exceptions states, that the plaintiff proved that the sheriff of Hinds county sold him the negro, but whether Demoss was the sheriff who sold non constat; and had it been so the issue involved two facts only in addition to the sale. 1st, Did Demoss undertake that he did not know the negro was not subject to sale ? 2d, Did Demoss know that he was not subject to sale? The record does not tend to prove either the one or the other of these propositions. Even if it proved his freedom, which is an ingredient in each of the foregoing propositions, it does not tend to prove that he was free at the time of sale, or tend so to prove, and there was no evidence offered in connection with it.
    
      Foute, on the same side.
    For the appellee it is insisted, that the court below properly rejected, the copy of record of proceedings on the habeas corpus, for various reasons.
    1. The appellee was a stranger to that record and the proceedings in that case. He was neither party nor privy, and it is a most obvious principle of natural justice, that no man ought to be bound by proceedings to which he was a stranger. Greenl. Evid. § 522, 523, p. 590; 1 Starkie’s Evid. part 2, 185, 186; Ibid. 191, sec. 60; Gridley v. Denny, 2 How. 820 ; Carmichael v. The Governor, &c. 3 How. 238. Besides, no writ of error lies from judgment of nonsuit taken, or sulfered in the case. Copeland, use, Spc. v. Mears et als. 2 S. & M. 521. Demoss could neither defend or control the proceedings upon the writ of habeas corpus; he could not cross-examine or introduce witnesses, nor pray an appeal or writ of error from the judgment on the habeas corpus, or become party to the proceedings by any mode known to the law.
    Again, it is a familiar principle that the allegata et probata shall correspond; the gravamen of the allegations in the declaration is, in first count, “ that appellee, as sheriff of Hinds county, undertook that he, defendant, appellee, did not know that the said negro boy was not the property of said F. Hume, defendant in execution, &c., and liable to sale, &c. And plaintiff averred that Jim was not the property of said F. Hume, &c.; and further avers, that at the time of undertaking by defendant, appel-lee, that the defendant did not know that negro boy Jim was not the property of said F. Hume, &c. These averments, if all true, show that plaintiff below had no cause of complaint, and that the undertaking charged against defendant below, (ap-pellee,) was true in point of fact.
    The second count charges that the appellee undertook that he did not know that he had not a good right to sell the boy Jim, and avers that appellee did know, at the time of the undertaking, that he, appellee, had not a good right to sell appellant the said negro. It is then upon the knowledge of appellee of the want of title in Hume to the boy Jim, and the implied fraud on the appellant, that appellant’s right to recovery is based; ap-pellee’s knowledge is the gist of the action. This knowledge is denied by the plea, and the existence or non-existence of this knowledge by the appellee, is the issue made in the record; and it is clear, that the record in the habeas corpus case could neither prove, nor conduce to prove, the possession by the appellee of the knowledge so charged against him in the declaration, and denied by his plea. Hence the evidence contained in the record rejected by the court below, was irrelevant, and could not support the allegations of the declaration.
    Moreover, the appellant did not prove, or offer to prove, that the negro boy, James Young, whose freedom was established, and adjudged in the proceedings on the habeas corpus, was the same and identical negro boy Jim, sold by appellee as sheriff, and mentioned in appellant’s declaration. If the record offered could have been received as evidence at any time, and for any purpose, this identity must necessarily be first proved. The counsel for appellant stated, that if appellees’ counsel would allow him toread the record, &c., on the habeas corpus, then appellant would prove that the negro sold was the same James Valentine, in the proceedings and judgment on habeas corpus mentioned. This statement of appellant’s counsel surely formed no legal ground or reason, upon which the record offered should have been read as evidence. Appellant might have failed to prove that James Young and the negro purchased by the appellant, and mentioned in his declaration as Jim, were the same persons; for by no other name is he described, whereas the person whose freedom was established and adjudged in the proceedings on habeas coiyus, was James Young. There is, therefore, a want of privity as to parties, irrelevancy as to the matter of proof offered, and of identity of parties and of the subject-matter in the record offered, which show clearly that the circuit court adjudged rightly in the matter complained of.
   Mr. Chief Justice Shamcey

delivered the opinion of the court.

This action was brought by Thornton in the court below, to recover the value of a negro, which Demoss, as sheriff of Hinds county, had sold by virtue of an execution, founded on the implied undertaking or promise of the sheriff, that he did not know that the negro was not liable to the execution. On the trial, the plaintiff, to establish the freedom of the negro, offered the record of a proceeding by habeas corpiis before a circuit judge, in which the negro was adjudged to be a free man. The defendant’s counsel objected to this as evidence, and the court ruled it out; whereupon, the defendant’s counsel ashed the court if this record would be admitted, in connexion with proof of notice to Demoss of the proceeding by habeas corpus, and was answered in the negative, and thereupon the plaintiff suffered a nonsuit, with leave to set it aside during the term, and brings the case up because of the refusal of the court to set aside the nonsuit.

The nonsuit was so far voluntary as to preclude the plaintiff from a right to have the judgment reversed. But if this were not so, still the record was incompetent evidence for want of jurisdiction in the judge who tried the habeas corpus, and therefore properly excluded. In all civil proceedings, negroes are regarded by our laws as property, and the owner or claimant cannot be deprived of his right or claim, except by the verdict of a jury. The 48th section of the act in relation to slaves, H. & H. Dig. 166, provides the mode by which any negro held or claimed as a slave, who claims to be free, shall establish his freedom. And it is the only remedy which he can pursue. Negroes, although persons for some purposes, are generally regarded as property, and excepted out of the general legislation in regard to persons, unless specially included. The color is prima facie evidence of liability to servitude. It is prima facie evidence of property in some one, and as a specific remedy is provided for removing the presumption, that remedy necessarily excludes every other, and must be strictly pursued.

Judgment affirmed.  