
    Pegram v. Isabell.
    March, 1808.
    Suit for Freedom — Evidence—Pedigree.—In tracing a pedigree, in a suit for freedom, wbat a witness swore to, on the executing of a writ of inquiry between the mother of the plaintiff and another person, may be given in evidence to prove the said mother to have been descended from a female Indian ancestor; altho’ the name of that witness be not particularly recollected, nor the witness himself positively known to be dead; it being proved by the witness stating the substance of his testimony, that he was a very old man, when he gave his evidence; that he believed him to be dead; and had endeavoured, in vain, as counsel for the plaintiff, to find a witness to prove the point to which he had testified.
    Same — Record of Former Suit — Admissibility.-—The record of the verdict and j udgment, upon a writ of inquiry, in a suit by the mother of the plaintiff, against a third person, in which record the ground of the judgment does not appear, may be given in evidence to prove, that the mother had recovered her freedom; not that she was entitled to it, "by reason of being descended in the maternal line from an Indian ancestor, imported into this state since the year 1705.” But the questions, upon what ground the judgment in that suit was rendered, and whether the descendant was born, after the mother acquired her right to freedom, or not, ought to be left open.
    This cause, in which a venire facias de novo was awarded in July, 1807,  again came on to be tried in the District Court of Petersburg, at the September term, 1807, upon the former pleadings and issue; viz, a declaration in trespass, assault and battery, and false imprisonment, by Isabell against Pegram, to try her right to freedom; plea, that the said Isabell was a slave; replication, that she was free and not a slave.
    The ground on which the appellee, claimed her freedom, was, that she was descended in the maternal line from an Indian who had been imported into this country, under such circumstances as would not justify her detention in slavery; on which ground, her mother Nanny had recovered her freedom of a certain Stephen Mayes, in the said District Court in the year 1799.
    At the trial of the cause, the defendant, (now appellant), '^tendered a bill of exceptions in the following words : “Be it remembered, that, on the trial of this cause, the plaintiff having proven by general reputation her descent from a woman named Nanny, offered as evidence to prove, that the said Nanny was free, (by reason of her being descended in the maternal line, from an Indian ancestor, imported into this state since the year 1705,) a record in a suit between Nanny and others, and Stephen Mayes, in these words and figures, to wit:” [The record is set out at large, from which it appears that the plaintiffs in that suit obtained a judgment by default, and that a writ of inquiry was executed.] “And the plaintiff, also offered in addition to said record, (in order to prove the same fact, in regard to the freedom of Nanny,) the testimony of G. K. Taylor, who proved that, on the trial of the writ of inquiry, in said suit, between Nanny and others, and Stephen Mayes, it was deposed by a witness, whose name the said Taylor did not particularly recollect, but whom he believes to have been one Francis Coleman, a very old man, who he believes, but does not positively know, is since dead, that the said Nanny was descended according to general reputation, in the maternal line, from an Indian ancestor, who was imported into this state, since the year 1705; the said Taylor, further stating that he had endeavoured to no purpose, to find a living witness who mght prove the same point, in the present cause: whereupon the defendant by counsel, objected to the introduction of the said record and of the said evidence of said Taylor, because the defendant in the present case, is not proven to hold or claim under, or in any other manner, to be privy to the said Mayes, the defendant in the said record mentioned; and because there never was any issue made up in the said suit, between the said Nanny and others, and the said Mayes, whereby the title of the plaintiffs to freedom was brought into question ; the said suit being tried on a writ oí inquiry: but the Court overruled the said objections, and admitted the .said record and the evidence of the said Taylor, to go to the Jury, as evidence to prove that the said Nanny was free, as being descended, in the *maternal line, from an Indian ancestor imported into this state since the year 1705; which evidence should be liable, however, to be rebutted by other opposing evidence and circumstances.” To which opinion the defendant by her counsel excepted, and the exceptions were signed and sealed by the Court. The Jury found a verdict, that the plaintiff was a free woman, and not a slave; judgment was entered thereupon, and the defendant appealed to this Court.
    This cause, was argued on the 16th of November, 1807, by Hay for the appellant, and by the Attorney-General for the ap-pellee. The Court took time, until this term, to consider of their judgment.
    Hay, for the appellant,
    objected, 1st. To the admission of the record in the case of Nanny and others v. Mayes, as evidence in the suit of Isabell v. Pegram; because, between Mayes, the defendant in the first cause, and Pegram the defendant in this, there was no privity or connexion. One of the first principles of law is, that a verdict between A and'B cannot be given in evidence against C. Tne reason is, that a party shall not be bound by a verdict, who had no opportunity of cross-examining the wilnesess. The principle applies with peculiar force, in the present case, because no defence was made by Mayes. On this point, which he considered as decisive of the cause, he did not think it necessary to adduce authorities. Such a practice was never adopted before, and would be a prostration of every idea of justice.
    2dly. Though he admitted, that hearsay testimony, was properly received to prove the descent of Isabell from Nanny, yet he objected to the introduction of G. K. Taylor’s evidence; both because there was no positive proof of Coleman’s death, and because it was admitted as evidence to prove the fact that Nanny was descended from an Indian. A pedigree may be proved by general reputation, but not the particular quality or character of the parties.
    *The Attorney-General, for the ap-pellee.
    The object of introducing the record, was to prove that Nanny, the mother oí Isabell, was free, in consequence of having been descended from a female Indian ancestor brought into this country since 1705. This record was offered not as conclusive, but only as persuasive evidence; and therefore the opinion of the Court in admitting it, is not in hostility with the case of Shelton v. Barbour,  which amounts to nothing more than that a verdict cannot be given in evidence, as conclusive, except between parties and privies. The record was the highest evidence, of that particular fact, that Nanny had recovered her freedom, and, if there had been a suggestion of any fraud in obtaining the verdict, it should have been shewn, 
    
    The objections that the verdict was not between parties or privies, and that there was no opportunity of cross-examining the witnesses, only apply to those cases, where a verdict was introduced as conclusive evidence : but, in this case, the record was offered as circumstantial or persuasive evidence only. It was only offered to prove the fact that Nanny was free; from which fact such inferences might be drawn as the law would permit. Several authorities recognize this distinction,  This is like the common case of an action upon the warranty of a slave or other personal pioperty. The plaintiff, as evidence of the recovery by a third person, introduces the record, containing the proceedings in the former suit. In that case, as in this, it is competent to the defendant to say, that the verdict was obtained by collusion; but the verdict is always considered evidence of the fact of a recovery.
    In Hudgins v. Wrights one piece of evidence relied on by the plaintiff below was, that John the brother of Hannah, daughter to the female ancestor, under whom the plaintiff claimed, had brought a suit for his freedom. — No particular decision was made on that point, but it was mentioned by one of the Judges as an auxiliary circumstance.
    *That the verdict in the case of Nanny and others against Mayes, was rendered on a writ of inquiry, makes no difference in point of reason, when it is considered for what object it was introduced. The legitimation of Nanny, however, appears as fully from it, as if there had been the most formal pleadings; and the inference is, that Mayes knew he had no right to detain her in slavery, and tnerefore thought a defence unnecessary. But Mr. Taylor expressly proves that testimony was given on the trial as to Nanny’s descent from a female Indian imported since 1705. Nor does it make any difference, in point of law', whether the verdict was rendered upon an issue or writ of inquiry, 
    
    It is admitted, by Mr. Hay, that hearsay evidence is sufficient to prove a pedigree, but not the particular quality or character of the parties. This record was not introduced as an independent piece of testimony, but as connected with, and explained by Mr. Taylor’s. His evidence, as to title, was nothing more than what ancient people, who were dead, had said about the ancestor of Nanny. But in Jenkins v. Tom and others, the Court affirmed the principle that hearsay evidence was admissible as to the quality or character of the parties. [On the doctrine of hearsay evidence, the Attorney-General referred to Peake’s Law of Evidence, p. 11, and to the same author, p. 50, to shew that what a witness, who was since dead, had swore to at a former trial, might be given in evidence.]
    It may be said that it is not proved the witness was dead Mr. Taylor says that he believes those facts were proved by the testimony of Francis Coleman, who, he believes, is since dead. This goes as far as -was necessary, to admit the evidence. The witness was a very old man, and this circumstance fortifies the belief of Mr. Taylor, that he was dead.
    Hay, in reply,
    said that his first objection was founded on the general principle, that a verdict was only evidence between parties and privies. This rule is laid down in Peake’s Haw of Evidence,  and the reason there given cannot *be controverted. And yet it is contended that the verdict, or rather the inquest, between Nanny and Mayes, was evidence in the case of Isabell and Pegram. Though Nanny might have been entitled to her freedom, it did not necessarily follow, that Isabell was entitled to her’s; for Nanny’s right to freedom might have accrued after Isabell was born.
    But even though a verdict on an issue may in certain cases be evidence, yet it does not follow that an inquest may; because, where a verdict is rendered on an issue, the matter of fact is found by a Jury, but, on writ of inquiry, they are bound to find for the plaintiff.
    If it be inferred, from the circumstance of Mayes’s making no defence, that it was a concession on his part that Nanny was entitled to her freedom; still it was only binding on him and those claiming under him; but could not affect others. This is an important question. Por, if it be once established that the confession of one man may bind others, a door will be opened to fraud, and emancipation, even in defiance of the law.
    But it is said, the record was introduced only as circumstantial evidence. When it got into Court, however, it was acted on as conclusive evidence: the defendant had a record exhibited against her of which she had never heard before; and, because she was not prepared to prove that the verdict was fraudulently obtained, it was permitted to operate against her.
    In support of this case, that of Shelton v. Barbour, has been relied on. That case only proves that between parties and privies, the verdict is conclusive. This doctrine is not denied; and is so laid down in all the books. But because the Court said, the verdict was conclusive evidence, between parties and privies, it was inferred that it is circumstantial evidence between others. A more correct inference would be, that it is no evidence at all. In that case too, the verdict being against the mother after a full hearing of the cause, it might be given in evidence by any person to 199 *prove her descendants to be slaves, on the ground that partus sequitur ventrem; but it would have been otherwise if the verdict had been for her.
    The cases cited by the Attorney-Genera] only, prove that there are exceptions to the general rule; but, unless he can shew that his case comes within those exceptions, they will not avail him. The principal point in the case of Bee, executor of Daniel, v. Cooke, was, that an action would lie against the executor of a covenantor, though his heirs only were named in the deed.
    On the 2d position, he contended that what a witness, who is dead, swore to on a former trial between other parties could not be given in evidence; but if between the same parties, it might, for a very obvious reason; because both parties had an opportunity of cross-examining. The very book referred to by the Attorney-General,  is conclusive authority, that such testimony is only admissible when it was given between the same parties. The evidence of Mr. Taylor ought not to have been admitted, on another ground; because he did not know whether the witness was dead or not.
    
      
       See vol. 1, p. 387.
    
    
      
       2 Wash. 61.
    
    
      
       1 VYask. 306, Lee, ex’r of Daniel, v. Cooke.
    
    
      
       Peake’s X,. IS. 40, Tbid. 78, in the notes, 6 Burr. 2698; Rex v. Grimes, Bull. N. P. 233, directly in point, 5 Bac. Abr. Gwil. ed. 429, cites Oo. Lit. 352, a. b.
    
    
      
       1 Hen. & Mun. p. 134.
    
    
      
       Judge Roane, ibid. p. 142.
    
    
      
       Peake’s L. Bv. 34.
    
    
      
       1 Wash. 123.
    
    
      
      Page 38.
    
    
      
       Peake’s Law of Evidence, 50.
    
   Friday, March 25. The Judges delivered their opinions.

JUDGE TUCKER.

This was a suit for

freedom, brought in the District Court of Petersburg. The pauper gave in evidence her descent in the maternal line from Nanny, who recovered her freedom in that Court in 1799 against Stephen Mayes, by judgment on a writ of inquiry, there being no de-fence ; and also gave evidence to prove, that on the execution of that writ of inquiry, (the record in which case was also offered in evidence, and admitted by the Court,) it was deposed by a witness, (whose name the present witness, Mr. Taylor, did not particularly recollect, but whom he believes to have been one Francis Coleman, a very old *man, who, he believes, but does not positively know, is since dead,) that Nanny was descended according to general reputation, in the maternal line, from an Indian ancestor, imported into this State since the year 1705. And further, that he. (being the counsel assigned the pauper) had endeavoured to no purpose, to find a living witness, who might prove the same point in the present cause. And thereupon the defendant’s counsel objected to the introduction of that record and evidence, because the defendant was not proved to hold or claim under, or in any other manner to be privy to the said Stephen Mayes, in that record mentioned; and because no issue was made up in that suit, whereby the title to the freedom of Nancy was brought into question. The Court overruled the objection, and admitted both the record and parol evidence to go to the Jury, liable to be rebutted by other opposing evidence and circumstances. Upon which there was a bill of exceptions.

The general rule as to giving verdicts and judgments in evidence is, that they are not to be admitted but between parties, or privies, But there are exceptions to this as well as to all other general rules. Among others, it is said, that where the fact is to be proved is such, whereof hearsay and reputation are evidence, a special verdict between other parties, stating a pedigree would be evidence to prove a descent; for, in such case, what any of the family who are dead have been heard to say, or the general reputation of the family, entries in family books, &c. are allowed, I find it also mentioned as a rule, that nobody can take benefit by a verdict that would not have been prejudiced by it, had it gone contrary, Whether the converse of this rule, viz. that whosoever might be prejudiced by a verdict, if one way, shall be entitled to the benefit of it, if to the contrary, also holds. I have not been able to meet with any authority that has decided. I may, perhaps, notice this point, after considering the two exceptions to the general rule above mentioned.

*1. The first is, that where the fact to be proved is such whereof hearsay and reputation are evidence, a special verdict between other parties stating a pedigree, would be evidence to prove a descent.

Among other cases in which bearsay is evidence, Mr. Espinasse mentions cases concerning legitimacy, cases of pedigree, and cases of settlement of paupers. As to the first, in a country where marriages are celebrated either by licence or publication of bans ; and where registers are required to be kept, it shews a liberal practice in the Court to admit of hearsay evidence upon that point. Yet, inasmuch as there must be many marriages celebrated in other countries, the reason of the law prevails to admit hearsay evidence, instead of requiring the bishop’s certificate, or the parish register to be produced. The same may be said as to pedigrees. And both the cases are stronger in this country, (where we have no registers of any kind at present, nor ever had as to persons of colour,) than in England. The case of paupers is also very strong. If then, the doctrine be sound, that a verdict inter alios may be admitted, wherever hearsay evidence is admissible, we may infer that it is admissible in all these. In this country it has always been admitted in pauper suits for freedom. The whole testimony in the case of Hudgins v. Wrights was of this nature, and the whole Court concurred in its admissibility and w'eight. In that case, the circumstance that John, a brother of Hannah, had brought suit for his freedom, was noticed by one of the Court in giving his opinion. Would it not have been competent for that circumstance, coupled with the other evidence in the cause, to have been offered in evidence to a Jury? And if so, is there any reason why a fact of that nature should not be proved by the highest evidence, namely, the record of his recovery. And, if such collateral and presumptive proof were admissible, where the party recovering was merely a collateral kinsman, would not similar proof, of a similar recovery by a lineal female ancestor, be also admissible?

*How far a verdict inter alios is admissible, either as conclusive or only as presumptive evidence in suits respecting freedom, I think may be shewn by the following case: A female held in slavery recovers her freedom by judgment in the Court of one County or District: she removes to another County or District, without a certificate of her freedom ; is taken up as a runaway; advertised and sold as such under the act concerning runaways. She brings another suit for her freedom against her new master. Can it be required of her to do more than produce the former record of her recovery, with an averment that she is the same person? I conceive not, and that such record is conclusive evidence against all the world; unless the judgment can be impeached by a person whose title was antecedent to that recovery, on the ground of fraud and collusion between herself and the defendant against whom she had recovered; or whose title was paramount to that of the defendant, and who would not have been barred by the act of limitations, if he had brought an action of detinue for her as his slave. Now let us suppose, at the time she was apprehended as a runaway, and sold, she had a child with her, who should also be sold as a slave. Would it not be competent to this child to produce the record of her mother’s recovery, and aver that she was born after the commencement of that suit, or the day of the writ purchased. And, if she proved this, would not the record be conclusive evidence in her favour against all the world, except as before mentioned. And, if it would be conclusive evidence in that case, as I hold it would, could she not avail herself of that record as circumstantial evidence, to prove her right to freedom under a prior right thereto, in her mother, if the child should happen to be born before instead of after the writ purchased in that suit? I am decidedly of that opinion also. Eor if she could be let in to prove the fact that her mother was a free woman by hearsay testimony, ought she not to be let in to prove it by a judgment? Since every judgment in favour of any person *furnishes a conclusion in law, that the person obtaining it is free, and not a slave? On these grounds, I am of opinion, that the record in the suit between Nanny and others and Stephen Mayes, was admissible evidence upon the trial of the suit between the present parties, although the defendant doth not claim a title to the plaintiff as his slave, under Mayes. But, although I am of this opinion, I cannot concur with the District Court to the extent of the opinion delivered by them, “that it should go to the Jury as evidence, that Nanny was free as being descended in the maternal line from an Indian ancestor, imported into this state, since the year 1705;” for the record contains no such fact as that: but it is conclusive evidence to prove that Nanny was either a free woman, or entitled to be so, the day of the emanation of the writ in that suit; and this fact it was competent to the plaintiff Isabell to prove by the record, if it can avail her cause. I am therefore of opinion, that the judgment must for this reason be reversed and a new trial had in the suit, in which the record between Nanny and others and Stephen Mayes, may be admitted as evidence that Nanny, one of the plaintiffs in that suit, was a free woman, or entitled to her freedom on the day of the emanation of the writ in that suit; leaving it open to both parties to shew upon what ground that judgment was rendered ; and also whether the present plaintiff was born before or after the emanation of the writ in that suit.

I am also of opinion, that the evidence of Mr. George Keith Taylor was properly admitted; as he states his belief, although he did not positively know, that the witness alluded to by him was dead; and that it ought to be admitted on the new trial in this case, unless it shall appear to the Court that the witness is still living, and may be had.

JUDGE ROANE.

In giving my opinion upon this case, I will premise two positions :

*lst. That if any part of the evidence in this case, that is material, has been received when it ought to have been rejected; or received to have a greater effect than it ought to have, the judgment of the Court below must be reversed,

And 2dly. That although liberty is to be favoured, “the Court cannot, on that or any other favoured subject, infringe the settled rules of law.” In that case it was held, in conformity to this principle, that a verdict between parties and privies, finding the mother of the plaintiff to be a slave, was conclusive evidence against him, as much as a verdict finding her to be'free would have operated in his favour. This decision, therefore, shuts out the pretence that we can, in this case, take a greater latitude in relation to the rules of evidence, than in any other.

Bearing in mind these positions, let us examine the case before us.

The evidence excepted to in this case was twofold: 1st. That of Geo. K. Taylor, given at the trial; and 2dly. That 'of the record in the case of Nanny v. Mayes.

As to the question concerning the testimony of Mr. Taylor, in the view I have taken of the subject, it is not absolutely necessary to be decided. As at present advised, however, I have no hesitation to say, that as hearsay evidence, and that of general reputation is admissible in relation to pedigrees, especially where the point to be proved is of ancient standing, and as the witness in question declares, “that he had endeavoured to no purpose to find a living witness to prove the same point in the present case,” &c. his account of what was proved by an old witness in the trial of Nanny v. Mayes, and who under the above circumstances is to be accounted dead, was rightly received, (so far as it goes to prove that Nanny was descended from a reputed Indian ancestor,) although he does not particularly recollect the name of the witness, nor know positively that such witness is since dead. Under these circumstances, this testimony is probably the best that the *nature of the case will admit, and is better than mere hearsay testimony, inasmuch as it was given in upon oath, although it was not between the same parties, nor upon a point decided, or necessary to be decided by the Jury. This point was not necessary to be decided by the Jury in that case, because the plaintiff’s right to freedom was admitted by the default of the defendant. This case, however, is at least as strong as that put in the case of Goodright v. Moss of an answer in Chancery, given by the mother in a suit between other partiés, but which was received merely as evidence under her hand, of her having made a declaration touching the legitimacy of her child. Whether the general reputation spoken of in this deposition is competent not only to fix the fact of the identity of the ancestor, but also that this ancestor was an “Indian brought into this country since the year 1705,” I am not entirely prepared to say. I believe that this point has never yet been decided by this Court. In the case of Coleman v. Dick and Pat, this point was found by the-Jury ; whereas the verdict in question finds nothing but the damages submitted to them, upon the writ of inquiry; and in the cases of Jenkins v. Tom, &c. and Hudgins v. Wrights, testimony was given respecting the appearance of the persons in question, which afforded data whereby the Jury and Court were respectively enabled to decide whether they were Indians or not. In this case, those data are not afforded, and the question is, whether by reason of the antiquity of the transaction, we can dispense with those data, and. let in proof of these facts by general reputation. I am disposed to think we may, from the necessity of the case, and the impossibility of obtaining better testimony. It is, besides, not easy to conceive that this general reputation would ever have arisen' unless these data had existed at the time of the origin of the transaction, to the general satisfaction of the neighbourhood; unless it had been clearly known to them, that the ancestor in question was brought into this

country *about the time mentioned in the testimony, and moreover had the entire appearance of an Indian.

As to the next point, it does not concern any evidence offered at the trial in the case of Nanny v. Mayes, nor any verdict rendered in the cause upon the very point now in question; but it submits this question to the Court, whether the record in that suit should go in evidence to the Jury, to prove that Nanny was free “by reason of being descended in the maternal line from an Indian ancestor imported into this state since the year 1705;” and the Court upon this point decided in the affirmative. If the question submitted by the appellee and decided upon by the Court had been merely that Nanny had recovered her freedom, the opinion had been correct, and then the ap-pellee’s case might have been made complete, by proof that she was born since such recovery was had. In that case, that record would not be given in evidence to prove the appellee’s right to freedom, but her mother’s right to freedom, and her case would have been made complete, on the principle partus sequitur ventrem, by shewing that she was born after such recovery was had: or she might have rested her claim to freedom dehors that record, and relied on the evidence stated by Mr. Taylor, to recover it, on the same ground that her mother had claimed hers. But the question propounded and decided is, that the record proves that Nanny recovered her freedom, ‘ ‘as being descended from an Indian ancestor,” &c. Eor any thing appearing in the record, the acknowledgment of the defendant, by means of which she recovered, might have been through mere inattention, or predicated on the ground of her having been legally emancipated, and not on that of a descent from an Indian ancestor. She recovered her freedom by the default of the defendant and by the judgment of the Court, and not by the verdict of the Jury: the Jury were only charged to inquire of damages. The title set out in the declaration is a mere general one of freedom, and the suffering the judgment by default, admits it as stated: it does *not admit any specific ground upon which the right of freedom was established: it does not admit that specific ground which is taken by the Court below in the present case, and was taken by the deposition of the aged witness. That testimony was given in, posterior to the confirmation of the judgment. The judgment therefore does not sanction or affirm the fact now in question; nor does the verdict of the Jury; (for it was confined to the mere question of damages;) and in truth it only finds “that the plaintiffs have sustained damages, by the occasion in the declaration mentioned, to one penny.” Neither the judgment nor the verdict, therefore, have affirmed the particular ground now in question, and necessary to be established on the part of the appellee, and which the District Court supposes it has decided. The evidence stated by Mr. Taylor to have been given, on executing the writ of inquiry, may indeed be used as evidence; but the record in question proves only this general position, that Nanny recovered her freedom. This would have been sufficient for the appellee, (as I have already said,) if that had also shewn that she was born since the time of that recovery ; but the judgment in question standing singly, proves nothing as to Nanny’s right to freedom, anterior to the date of the writ, and affirms no specific ground of recovery ; and therefore, although we are not now at liberty to controvert her right to freedom, the judgment in question proves nothing, so as to benefit the ap-pellee : but admitted, in the extent in which it was received, it had a direct tendency to injure the appellant.

However competent, therefore, a verdict between other parties, and finding a particular fact, whereof reputation is admissible evidence, might be to establish such fact, it is clear that the verdict and judgment before us, was inadmissible under this criterion.

I cannot well see why the testimony of the old witness was at all exhibited, unless the writ of inquiry had been set aside, and the questions of freedom put in issue ; for *that right was admitted, and the Jury, going for damages, ought to have regarded, as they did regard, the established law on that subject, and found only one penny damages. That evidence, however, considered merely as evidence, was proper to be used in this trial, however irrelevant in the former: but as to the record in question, it stands upon quite a different foundation; it does not prove the particular point for which it was produced, and which the District Court decided it did prove.

On these grounds, therefore, (without going through every point and question made in the argument of the case,) I am of opinion that the judgment of the District Court, so far as it respects the admission of the record in question, in the latitude taken by the Court, was erroneous, and ought to be reversed.

JUDGE EEEMING.

Although it is admitted, that laws should be liberally construed in favour of the rights of freedom, yet the rights of property ought to be respected and preserved; and it is perhaps attended with difficulty to draw the true line of distinction between them.

There are two objections to the opinion of the Court stated in the bill of exceptions in this case:

1st. In admitting the record and verdict, in the case of Nanny and others v. Mayes, to go in evidence to the Jury, to prove that the said Nanny was free b3’ reason of her being descended in the maternal line from an Indian ancestor, imported'into this state since the year 1705; because the defendant is not proven to hold, or claim under, or in any other manner to be privy to, Mayes, the defendant in the said record mentioned ; and because there never was any issue made up in the said suit between Nanny and others and the said Mayes, whereby the title of the plaintiffs to freedom was brought in question, the suit being tried on a writ of inquiry.

2dly. In admitting the testimony of Geo. K. Taylor, who proved, that on the trial of the writ of inquiry aforesaid, *it was deposed by a witness, he thinks one Coleman, a very old man, (who he believes is since dead,) that the said Nanny was descended, according to general reputation, in the maternal line, from an Indian ancestor, who was imported into this State since the year 1705. The said Taylor further stated, that he had endeav-oured, to no purpose, to find a living witness, who might prove the same point in the present case.

With respect to the first objection, it is a general rule, that no verdict shall be given in evidence, but between such as were parties in the cause in which the verdict was given, or privies to them, In the case of Sherwin v. Clarges, cited in Buller’s Nisi Prius, 232, it is laid down that a verdict on the same point, and between the same parties, may be given in evidence, though the lands are not the same, but then the verdict ought to be between the same parties, because otherwise, a man would be bound by a decision, who had not the liberty to cross-examine: and nothing can be more contrary to natural justice than that any one should be injured by a determination that he was not at liberty to controvert. And where it is said that a verdict may be given in evidence between the same parties, it is to be understood with this restriction, that it is of a matter which was in issue in the former cause; for otherwise, it will not be allowed in evidence, because, if such verdict be false, there is no redress.

Apply these rules and principles to the case before us: Pegram, the appellant, was neither party nor privy to the suit between Nanny and others v. Ma3'ers, nor is it pretended that she claims title to hold Isabell as a slave under Mayes, and the objection in this case has additional force, from the consideration, that in the former case there never was an issue by which the right of Nanny and others to freedom was brought in question before the Jury.

2. As to the second point, the admission of the testimony of Geo. K. Taylor, it seems correct, and not exceptionable; because the declarations, especially when made upon oath, of persons uninterested and who are then dead, *or not to be found, are admissible and proper, in questions concerning legitimacy, or in questions of pedigree.

But the admission of the record in the case of Nanny and others v. Mayes, to go in evidence to the Jury, seems to mean error not to be gotten over; unless' it had been qualified with an instruction that it should be considered only as evidence that Nanny had obtained her freedom.

In the case of Shelton v. Barbour, which was mentioned in the argument, the record in a suit for freedom, between the. mother of the appellee and Robert Harris, was decided by this Court to be not only proper but conclusive evidence; because there was an act of Assembly in force, declaring that children shall be bond or free, according to the condition of the mother; the verdict which found the mother a slave, was therefore conclusive evidence to prove the son was so, unless rebutted by evidence to prove that the son had been emancipated after his birth.

I am of opinion, upon the whole, that the judgment is erroneous, and ought to'be reversed ; that the cause be remanded to the District Court for a new trial, with an instruction that the record in the case of Nanny and others v. Mayes, is not to go in evidence to the Jury, unless it be qualified with an instruction that it be considered only as evidence that Nanny had obtained her freedom.

The opinion of the Court was entered as follows:

* ‘This day came the parties by their counsel, and the Court having maturely considered the transcript of the record of the judgment aforesaid, and the arguments of counsel, is of opinion, that the said District Court erred in permitting the record in the suit between Nanny and others and Stephen Mayes to go to the Jury, as evidence to prove that the said Nanny' was free as being descended in the maternal line from an Indian ancestor, imported into this State since the year 1705; no such fact as that appearing from the said record, in which there is neither plea nor issue, but a judgment by default, and writ of ^inquiry of damages only; and that there is no other error in the said judgment. Therefore it is considered, that the said judgment be reversed and annulled. And it is ordered, that the jurors’ verdict be set aside, and that a new trial be had of the issue, joined between the parties in this suit; on which trial the record in the suit between Nanny and others and Stephen Mayes shall be admitted to go to the Jury as evidence that the said Nanny, one of the plaintiffs in the said record mentioned, was a free woman, or entitled to her freedom on the day of the emanation of the writ in that suit; leaving it open to both parties to shew, if they can, upon what ground the judgment in that suit was rendered; and also leaving it to them to shew, if they can, whether the plaintiff Isabell was born before or after the emanation of the writ in that suit.” 
      
       Buller’s N. P. p. 231.
     
      
       Ibid. 233.
     
      
       Hard. 472, cited in Gwil. Bac. Abr. title. Evidence, (F.)
     
      
      
        2 Nisi Prlus, 785, 786.
     
      
      Cb) 1 Hen. & Munf. 131.
     
      
       See to this point, the case of Goodrigrht, &c. v. Moss, &c. Cowp. p. 593, and the decision of this Court during the present term, in the case of Preston v. Harvey.
     
      
       2 Wash. 67, Shelton v. Barbour.
     
      
       2 Bac. Abr. G-wil. edit. 625.
     
      
       1 Stra. 612.
     
      
       3 Bsplnasse, 736.
     
      
       2 Wash. 64.
     