
    Garnett v. Sam and Phillis.
    Decided April 1st, 1817.
    a. Suit for Freedom — Case al Bar. — If the case made by a Bill of Exceptions be, that the plaintiiis, suing for freedom, were brought into this State subsequent to the year 1786, and that the defendant asserts a claim to them on the ground that the Oath, prescribed by the 4th section of the Act of 1792, (1 R. C. ch. 103.) was duly taken by him or those under whom he claims; the other grounds of claim authorised by the last clause of the same section, (not being mentioned,) must be considered as excluded.
    3. Same — Importation after 1786 — How Right to Freedom Obviated. — The right of freedom, prima facie, acquired by a Slave imported into this State, subsequent to the year 1786, could only be obviated by evidence adduced to shew, or by circumstances authorizing a presumption, that the Oath required by law had. been taken by the importer.
    3. Same — Evidence--Declaration of Person Importing Plaintiffs. — in the trial of a suit for Freedom, declarations of a person, who imported the plaintiffs, are not evidence in their favour; if it do not appear that those declarations were made during the time, when he claimed them as his slaves, and that the defendant claims under him.
    On the trial of the usual issue, in an action, for freedom instituted in July, 1811, on behalf of the Appellees, against the Appellant, in the County Court of Spottsylvania, the plaintiffs offered in evidence two affidavits, shewing that they were brought into this State, by water, in the month of June 1787, according to one, and between 1787 and 1790, according to the other; that a Mr. Peck, who moved from the State of New Jersey to Virginia, said that he had brought them with him ; that he treated Sam more like a white man than a slave ; that he said, that Sam was as free as he was, and acted as his Overseer; that he had lived with him in New-Jersey; and that he and his family (Phillis being his wife) had agreed to come to Virginia in consequence of their mutual attachment. *To these Affidavits going to the Jury as evidence, the defendant objected ; but the Court over-ruled his objection ; to which opinion he filed a Bill of Exceptions.
    The plaintiffs, by their Counsel, moved the Court to instruct the Jury that, “If they were satisfied that the plaintiffs were brought into this State subsequent to the year 1786, the defendant, who attempted to defend himself under the proviso contained in the 4th section of the Act, entitled, ‘An "Act to reduce into one the several Acts concerning Slaves, Pree Negroes and Mulattoes,’must, in order to entitle himself to the benefit of that proviso, shew that he had taken the Oath prescribed and required thereby but the Court refused so to instruct the Jury : to which opinion of the Court the plaintiffs excepted.
    The Jury found a Verdict for the defendant. The plaintiffs moved for a new trial, and, again, excepted to the opinion of the Court, over-ruling- that motion ; setting forth, in their second Bill of Exceptions, the two Affidavits aforesaid, as “all the evidence given on either side to the Jury.” Judgment was entered, according to the Verdict, which, on an Appeal to the Superior Court of Eaw, was reversed, on the ground, that the Court had erred in refusing to give to the Jury the instruction, requested by the plaintiffs ; and the cause was retained in the Superior Court for a trial of the issue to be had therein. From this Judgment of reversal the defendant appealed to this Court.
    Stanard for the Appellant.
    The instruction asked for was upon an abstract point, and does not appear to have arisen in the cause. But if the point was fairly presented by the evidence, the Court ought not to have given the instruction ; because the defendant might have claimed the slaves by “descent, marriage, or devise,” and therefore have been entitled *to protection, under the farther exceptions in the Act of 178S, re-enacted in 1792.
    
    Wirt contra.
    The Instruction requested was a proper one, and such as the Court was bound to give. It was not upon a mere abstract point, but obviously upon a point which might have arisen, and did arise in the cause,  The case must be taken from the Bill of Exceptions. It was the business of the defendant, if he relied upon any of the farther exceptions in the law, to have inserted that fact.
    A general objection is taken to the depositions, as not legally admissible ; but no particular objection appears.
    As to the objection to hearsay evidence ; in a case of this sort it is out of the question,  But the evidence here is of declarations by Peck, the man, who imported the plaintiffs ; which is not hearsay.
    Stanard in reply. This is the first time I ever heard that, when papers are introduced, which prima facie are not evidence, it is necessary to make specific objections.
    Who is Mr. Peck ? Why are the rights of Garnett to be affected by his declarations 7 There is no proof of any connexion between Garnett and Peck.
    The case of íenkins v. Tom relates only to pedigree. The subject in dispute cannot alter the rules of evidence.
    The Judgment of the County Court in substance'was correct, even if the refusal to give the instruction were wrong: because there was no legal evidence in the cause.
    But the Court did right in leaving it to the Jury. Might not the Jury well presume that the plaintiffs were brought into the State conformably with law, when they had been held as Slaves therein . upwards of thirty years ? The Court very properly refused to say that the defendant was bound to prove that the Oath had been taken by him. He did not import them. Could any thing have been more preposterous than *such an instruction ? I have always understood that the party who excepts is bound to shew that the Court’s opinion was incorrect.
    The Jury might well presume, from the circumstances, that the Oath had been taken. No provision for perpetuating the evidence of it is made in the law, which does not even say that it shall be reduced to writing. After such a length of time, when every Magistrate, who lived in the County at the time of importation, and every person, connected with the transaction, was dead, the burthen of proof ought surely not to be imposed upon the defendant. It would be a most formidable decision, that every descendant of a slave, brought in since 1787, is entitled to freedom, unless it can now be proved that the Oath was taken by the importer, and within sixty days after the importation. Even a grant from the Commonwealth, or a Deed, will be presumed after thirty years possession.
    Wirt. Length of time, or staleness of demand, is no bar to a suit for freedom.
    
      
      The principal case is cited in M’Michen v. Amos, 4 Rand. 140, 141; Betty v. Horton, 5 Leigh 626.
    
    
      
       Note. In the Record, previous to the trial, was an entry, in these words: “At a Court continued and held for the said County, the 6th day of April 1813, came the parties, &c. and, by consent of the said parties, by their Attornies.” the Affidavits of Mary Greenlaw and William Greenlaw” (which were the Affidavits in question,) “are to be taken this afternoon, to be read as evidence in this cause absolutely:” and, by the like consent, the cause was then continued at the defendant’s costs. — Note in Original Edition.
    
    
      
       1 R. C. ch. 103, § 4, p. 187.
    
    
      
       Shelton, v. Cocke, Crawford and Co. 3 Munf. 191.
    
    
      
       Jenkins v. Tom, 1 Wash 123.
    
    
      
       Note. This appears to have been a mistake of Mr. Stanard. The time which elapsed between June 1787, the most remote time alleged as that, in which the negroes were brought into the State, and July, 1811, when the suit was instituted, was only twenty-four years and one month. The Verdict was found in 1813. — Note in Original Edition.
    
   April 1st, 1817,

JUDGE ROANE

pronounced the Court’s opinion.

The Court is of opinion that the case made by the second Bill of Exceptions in this cause is, that of the Appellee’s having been brought into this state subsequent to the year 1786, and of a claim asserted to them by the Appellant, on the ground that the Oath, prescribed by the 4th section of the Act of 1792, (1 R. C. ch. 103,) has been duly taken by him, or those, under whom he claims ; in exclusion of the other grounds of claim, authorized by the last clause of the same section.

On this case the Court is farther of opinion, that the right of freedom, prima facie acquired by the Appellees by such alleged importation, could only be obviated by evidence, adduced to shew, or by circumstances authorising a presumption, that such Oath had been taken ; and that the terms of the instruction asked in this case were broad enough to include the latter description of evidence as well as the former. *And, as the refusal of the County Court to give the said instruction may have absolved the Appellant from exhibiting, either such circumstances, or such evidence to the Jury, one or other of which is deemed to be indispensable, the Court is of opinion, that the said refusal was erroneous, and may have injured the rights of the Appellees on the trial.

The Court does not deem it important to decide on the admissibility of the affidavits objected to by the Appellant, because the Verdict and Judgment, being in his favour, would not be reversed for an error in that respect, if it existed. But the Court is of opinion that, if those affidavits are again offered in evidence upon the new trial, the declarations of Peck, therein stated, relative to the freedom of the Appellees, are to be withheld from the Jury, as it does not appear therein that those declarations were made during the time, in which the said Peck claimed the Appellees, nor that the Appellant claims under him ; both of which ought to appear in order to make such Declarations evidence against the Appellant; and that there is no error in the Judgment of the said Superior Court of Law, which is therefore affirmed; and the cause is remanded for farther proceedings.  