
    Elias Horry and Rev. Paul Trapier, Trustees of Mary A. and James F. Heyward, v. Dr. Jos. Glover, Mrs. E. Glover and John Fraser, Executors of J. Heyward Glover, deceased, and Others.
    A remainder-man may sustain a bill in equity against the tenant for life for the specific delivery of slaves. [*516]
    On a question as -to identity of slaves, it is admissible to prove that the slaves in question were called certain names and said by other negroes to belong to a certain gang [517]
    The teuant for life of slaves as a trustee for the remainder-man is bound to account, and the burthen of proof to show the increase or diminution is thrown on him; and in default of accounting, he shall be charged with the value of such number as the original stock may reasonably be supposed to have increased; subject, however, to evidence of peculiar circumstances, accident or mortality. [*520]
    A specific bequest of property strictly consumable in the use, such as corn, wine, &c., gives the absolute property, but of a flock or herd which is capable of increase, the tenant for life taking the increase is bound to keep up the number of the original stock. [*521]
    The estate of tenant for life having been divided before administration, reference ordered to ascertain if sufficient property came into the hands of her son, so as to make his estate chargeable for the stock, &e. [*521]
    Limitations of trusts of personalty are the creatures of equity, and it is by regarding the tenant for life as a trustee for the remainder-man, that equity takes jurisdiction to compel the execution of the trust to the remainder-man. And not only the personal representative of the tenant for life, but every volunteer and purchaser with notice, are bound by the trflst. [*523]
    According to the general rule laid down in Sarter vs. Gordon, that a bill will lie for specific delivery of slaves, the remainder-man may sustain a bill against the representatives of a tenant for life, or volunteers under her, to compel delivery of slaves bequeathed to him. [*523]
    Where one states that his slaves have come into possession of another who refuses to deliver them, he states a sufficient ground for equity jurisdiction. [*524]
    But if it should appear that he contracted for slaves generally, with no view to their qualities, or to any individuals, but as mere merchandize, the remedy is at law. [*525]
    When an issue will be ordered. [*525]
    The interest to disqualify a witness must be present and certain, and not uncertain and contingent : And, therefore, where a tenant for life of slaves loaned them to her son, and on her death her estate, excluding these slaves, was divided between her son and daughter, on a bill by the remainder-men against the administrators of the son, for specific delivery of the slaves, the husband of the daughter is a competent witness for the plaintiffs, to prove the identity of the slaves; although if the plaintiffs should fail to identify the slaves, and the defendants to prove that the stock had perished, the estate of the tenant for life might be made liable for the value, and the witness required to contribute. [*525]
    On the qustion as to the identity of slaves, where the original stock are all dead, hearsay coming from negroes, that those claimed are descendants, is admissible. [*527]
    The general rule is, that if a trustee wrongfully refuses to deliver on demand, he is liable if the property afterwards perishes: and therefore, defendant, claiming as a volunteer under-tenant for life, was held liable to remainder-men for slaves, who died since the filing of the bill to compel delivery. [*528]
    Colleton District, May Term, 1836.
    The following decree presents a full statement of the case:—
    Harper Chancellor. Daniel Heyward, by his will, dated in 1*1*18, gave to his brother Thomas, in trust for his (testator’s) wife, for life, his plantation, known by the name of Springfield, together with all the negroes, plantation utensils, stock of cattle, hogs and sheep; also, twenty head of cows and calves, from his plantation called White Hall. All the residue of his estate he gives to his brother, Thomas Heyward. The testator died soon after, and his widow, Mrs. Margaret Heyward, went into possession of the property devised in trust for her. Mrs. Heyward, in the year-, married Wilson Glover. The bill charges that, during the coverture, she was in possession of all that estate she derived from her first husband, Daniel Heyward’s will, as her own and separate estate, and enjoyed the same free from the let, control, or intererenee of the said Wilson Glover, and continued in like manner, in possession after his death, (she having survived him,) until her own death in 1832.
    Thomas Heyward, the residuary devisee of Daniel Heyward, by his will, gave his whole estate, real and personal to his wife, Mrs. Eliza Hey-ward, and she by deed executed in 1832, released *to the plaintiffs, „ Elias Horry and Paul Trapier, all the reversionary interest which L Thomas Heyward took in the personal estate of Daniel Heyward after the life estate of Mrs. Glover, in trust for the plaintiffs, Mary A. and James E. Heyward.
    The bill charges, that the slaves who constituted part of Mrs. Glover’s life estate, were by her, in her lifetime put into possession, by way of loan, of her son, John Heyward Glover, now also deceased, and at his death came into the possession of his executors. The objects of the bill is to obtain the delivery of the slaves who were given by Daniel Heyward to his wife, afterwards Mrs. Glover, for life, or their descendants, and to have an account of their hire from the death of Mrs. Glover; also to have an account of the cattle, &c. The executors of John Heyward Glover, the surviving executors of Wilson Glover, and the administrator of Mrs. Glover, are made parties to the bill.
    The first question made, was whether the bill would lie, as the plaintiffs have adequate remedy at law, by an action of trover or detinue. Independently of considering the tenant for life as a trustee, bound to account and therefore amenable to this Court, it has been determined by the Court of Appeals, in the case of Sarter v Gordon, (ante 121,) decided at Columbia, that as a general rule, a bill may be maintained for thé specific delivery of slaves. Some exceptions are stated, but this case does not come within the exceptions, but within the express reason of the rule. Entertaining jurisdiction for this purpose, the Court will do complete justice between the parties, in relation to the whole property and the matters of account.
    Then it becomes merely a matter of evidence to identify the slaves who are subject to the disposition of the will.
    By the inventory and appraisement of the estate of Daniel Heyward, made in 1183, it appears that there were then on the Springfield plantation, twenty-two slaves, who are named. It is not surmised that any of the original stock are now in existence, but those now claimed, are claimed as the descendants of the former.
    . The testimony chiefly relied on by the plaintiffs, is that of the witness, John Eerrabee. This witness thinks he heard John Heyward Glover say, the Heywards had some claim on negroes after his mother’s death. Witness “thought they were the negroes that he said belonged to his mother. He said, one woman at Wrightfield, named Eanny, belonged to his mother. Eanny is *now alive, and has, he believes, fourteen children and grandchildren. — Nancy and her children, Solomon, *- Yenus, Phillis, and November — one of these mentioned, died last fall, aged about four years — Sam, Bobert, June, Stephen, Adam, June, Affie, Sylvia. Sally died last week, she was about four years old. Witness says he recognizes some of the negroes of H. Glover’s estate, by the name of Springfield gang ; has heard the negroes call them so, and no one else. Fanny and her children and grandchildren are a portion of them; also, Charley, Sampson, Joe, Tom, Harriet, Monday, Tirah, Rachel, Mary Ann, Accabee, Hannah, Toney, Polly and children.”
    An objection was taken to the last part of the witness’ testimony — that the negroes called these the Springfield gang — as being hearsay from slaves. But it does not strike me in that point of view. The effect of the testimony does not depend on the credit to be given to the slaves whose declaration are testified to. The fact that the slaves did call them so, depends on the credit of the witness who was examined. Then the inference is drawn from that fact, that it cannot be conceived why the slaves should have called them so, if they were not so in fact. It is as if the -witness, attempting to identify them by their names, had testified that the slaves called one Fanny, or another Toney. This could not be called hearsay. Another portion of the testimony of the witness, with respect to what his brother told him, I consider inadmissible.
    This testimony is, I think, entitled to its weight but it is very strongly corroborated by other circumstances. On the part of the defendants there is opposed to it the testimony of the witness, Richard Y. Carey, (who was examined, however, on the part of the plaintiffs.) The testimony of this witness was given in a very confused and precipitate manner, and I may not have taken it down with perfect accuracy. The amount of it was, that he was in the service of John Heyward Glover, managing his plantation, from 1810 to 1821; that there were a certain number of slaves, (eight altogether1,) known as the Springfield gang, who were first removed from Springfield, to a place called,, the Old Store, and thence to Mr. Glover’s plantation of Wrightfield; these -were mostly superannuated and are dead, without children. In this last particular he is corroborated by Ferrabee. But thus far his testimony is not inconsistent with that of Ferrabee. There may have been other Springfield negroes besides those *5181 brought from the Old *Store to Wrightfield, unknown to the wit-J ness. Indeed, he says Ool. Glover did not pretend to point out all the negroes that were to go to Judge Heyward’s family after his mother’s death. But he adds that in 1813, he, with the assent of Col. Glover, gave to James Heyward a list of those slaves, then amounting to eight. In this there seems to be some contradiction. With respect to Fanny, the witness is more explicit. He states that she was not one of the Springfield negroes. He knew her at about the age of nineteen, when she was brought from Wilson Glover’s Swamp plantation. This I suppose to- be his reason, for not thinking her one of the Springfield negroes, in addition to his never having heard her so called. This seems to be in some degree contradictory of Ferrabee, but it is not absolutely inconsistent. She may have been sent from Springfield to the Swamp, and thence to Wrightfield. If there were more direct contradiction, however, I think the circumstances give the preponderance to Ferrabee’s testimony. First, the intrinsic improbability of such a gang of twenty-four slaves, pretty well apportioned as respects men and women, becoming extinct during a lapse of fifty-three years; and defendants indicate no other slaves as being descendants of the stock in question.
    Mr. Nathaniel Heyward, who was examined as a witnesss, stated that he never heard of the Springfield gang of negroes having died, or of any extraordinary decrease; and from his opportunities of knowing, this could hardly have occurred without his having heard of it.
    
      The testimony of Mrs. Hamilton, was, that about the time referred to by Carey, (twenty-five years ago, which must have been about 1810, or 1811,) Mrs. Glover, passing by the Springfield plantation, spoke of the gang of slaves as then existing on it.
    But more satisfactory than these is the testimony of Mr. John Huger. He states, that a short time before the death of Heyward Glover, he saw a list of the negroes, in the handwriting of Heyward Glover, which was sent by him to his mother, with an offer to deliver them up. These negroes the witness heard Wilson and Mrs. Glover speak of, as connected with the will of Daniel Heyward. Mrs. Glover offered them to the witness for her life,- but he declined receiving them. According to the list, they then amounted to twenty-five or thirty. He believes the negroes are now at Wrightfield. Mr. Huger identifies no particular negroes, but the ^number stated by him agrees very well with the number now claimed. It was agreed, however, at the hearing, that the estates L of Wilson Glover and Mrs. Glover, have been divided between their children, Heyward Glover and Mrs. Huger, (wife of John Huger,) and on that division the negroes at Wrightfield, (by which I understand the negroes now in question,) were not divided or brought into account. Now, connect this with the testimony of Mr. Huger, and can I possibly avoid making the inference that they were reserved from division on the knowledge of the parties, that Mrs. Glover’s interest in them had terminated with her life, and that they were not subject to division ? Nor is this inference weakened by the testimony on the part of the defendants, to show that there had been an unusual mortality among the Springfield negroes. A paper was produced, in the handwriting of Wilson Glover, purporting to be an account of the slaves in llSS, and having the word “ dead ” written opposite to many of their names. I do not understand this to purport that they were then dead. The paper is an account of slaves then removed from the Springfield plantation. I conclude the memorandum “ dead,” to have been made afterwards; perhaps at various times, as the deaths occurred. If so, it affords no evidence that the gang did not increase. No doubt all the original stock are dead now. The births of two children are noted in U83. This seems to have been done at the time of making the list, and I suppose they were then born, but the paper does not purport to give any. account of births afterwards. But, if all so marked were dead at that time, it may very well be that the residue have increased to the number now claimed. Nor do I attach any importance to the testimony of the witness, Broughton, that heard Mrs. Judge Heyward say she believed they were all dead, or of Mrs. Jane Glover, that she heard of the negroes having been removed to Pedee, and of great mortality among them there. It is plain that there must have been some unusual mortality among them, or their numbers would have been much greater than they are. Within the same time many stocks of slaves have doubled or trebled their numbers, while the number now claimed is about the same as that of the original stock.
    I think, on the evidence, the plaintiffs’ claim must be sustained. But I think there is much force in the argument of counsel, that the tenant for life was trustee for the remainder-man, and the burden* is on r*goQ her legal representative to account. For many purposes the <- tenqnt for life is regarded as trustee. He is bound to make an inventory of the property, that the remainder-man may be able to identify it; and by parity of reason, it seems to me that in the peculiar case of slaves, where the increase goes to the remainder-man, he is bound to keep an account of the increase. Certainly the defendants have not shown the stock of slaves in question to be extinct. Then in default of accounting, how shall the estate of the tenant for life be.charged ? I can conceive of no other method than this, to charge it with the value of such a number of slaves as the original stock may reasonably be supposed to have increased to — subject, to be sure, to evidence of any peculiar circumstances, accident or mortality, which may have prevented increase. It seems to me that it would be to the disadvantage of defendants to be charged in this manner. Plaintiffs, however, claim no more than the negroes specified, and to those I think they are entitled.
    Plaintiffs also claim the value of one or two of the slaves, who died after the termination of the life estate, and before the hearing. In the case of-, decided by the Court of Appeals at Columbia, at its last sitting, it was held, that in an action of trover, where one of the slaves had died in possession of defendant, the measure of damage was the hire up to the death, or the interest on the value from the time of the conversion ; but the jury were not bound to give the value of the slave when living, unless there were reasons to believe the death, in some manner, a consequence of the defendant’s act. Upon further examination, I have some reason to doubt, whether that case was sufficiently considered. But as it is, I must be governed by it, and this claim must fail.
    Plaintiffs are also entitled to hire of the slaves from the 1st of January, 1833, until they shall be delivered.
    Evidence was offered of the value of the hire, to save the necessity of a reference; in which course I understood both parties to acquiesce. There were shown to be fifteen working hands, and the average value of hire for the years in question was fixed at $60 per annum, making $900 per annum.
    Plaintiffs are also entitled to the value of the stock of cattle, hogs and sheep. By the inventory of 1183, it appears that there were then on the Springfield plantation, 183 head of cattle, 30 hogs, and 61 sheep. The value of the cattle was agreed to be $5 per head; *but there was 1=521] no evidence to that of the hogs and sheep. The ground was taken that a bequest for life of this sort of property, which was said to be consumable in the use, gives the entire property. But this is contrary to the well-settled rule. A specific bequest of property, strictly consumable in the use, such as corn, wine, &e., gives the absolute property. But of a flock or herd, whicji is capable of increase, the tenant for life, taking the increase, is bound to keep up the number of the original stock. The principle is explained by Judge Nott, in the case of Devlin v. Patterson, referred to and recognized in Robertson v. Collier, 1 Hill, Ch. R. 310. Such is the rule of the civil law, from which ours is taken. 1 Domat B. 1, Tit. 11, Sec. 3. The case of Randall v. Russell, 3 Meriv. 190, which was relied on, was one in which the stock of cattle, &e., was held to have been given absolutely by the terms of the will.
    Another question arises, what estate is to be charged with these ? There is no showing that the cattle went into the possession of John Heyward Glover. .I cannot charge the estate of Wilson Glover with them, contrary to the plaintiff’s own allegation, that Mrs. Glover retained her whole property as a separate estate. The estate of Mrs. Glover is certainly liable, but her administrator answers, that he has received no effects of his intestate, and has been informed that she died possessed of no effects besides some articles in her personal use of little value. It is true that it was agreed that the estates of Mrs. Glover and Wilson Glover, were divided between Heyward Glover and Mrs. Huger, but there was no evidence as to what her estate was. I may conjecture that there was an estate of Mrs. Glover, divided between her children before administration. If Heyward Glover did, in this way receive enough of his mother’s estate for the purpose, it might be followed in the hands of his representatives, and rendered liable for a moiety of the demand. But there was no proof of this, and I cannot decree upon conjecture. The plaintiffs may have a reference upon this matter if they think proper.
    It is ordered and decreed that the defendant, Mrs. Eliza Glover, executrix of John Heyward Glover, deceased, deliver to the plaintiffs the slaves before enumerated, which are now in her possession, and pay for the hire of slaves, at the rate of nine hundred dollars per annum from the 1st day of January, 1833, until the *said slaves shall be delivered, i-^koo with interest on the hire of each year from the end of the year. L
    The defendants appealed on the grounds :—
    1. That the plaintiffs had plain and adequate remedy at law, and, therefore, equity ought not to entertain jurisdiction of the case.
    2. The defendants had nothing of which to make discovery in any manner relating to the case made by the bill, so that equity could not, on the ground of discovery, entertain jurisdiction.
    3. That Mr. John Huger was directly interested in the event of the suit, and therefore his evidence is inadmissible.
    4. That hearsay evidence has been admitted in the case on points in which it was inadmissible, and ought to have been excluded.
    5. That hearsay from negroes has been admitted, and ought to have been excluded.
    6. That on the facts legally proved, and the law applicable to those facts, the decree ought to have been for the defendants.
    Plaintiffs insist that, as the decree is opened by the appeal, the defendants should account for the negroes that died since the commencement of this action.
    And, that the estate of Wilson Glover, should be charged with the cattle, as it appeared on the evidence that he disposed of them — and that they were not the separate estate of Mrs. Glover.
    
      Petigru and Lesesne, for the plaintiffs.
    
      King, for defendants.
   Chancellor Harree

delived the opinion the Court.

The two first grounds of appeal by defendants may be disposed of together. On both the grounds taken in the decree, the jurisdiction of the Court must be supported. It is admitted that during the lifetime of the tenant for life of personal chattels, he is regarded as a trustee for the remainder-man. But the trust is supposedAo terminate with his life. But this is contrary to the main purpose for which he is made a trustee. It is hardly necessary to say, that at common law, there could be no limitation of personal chattels to one for life,, with remainder to another, and that a gift for a day or an hour, vested the whole in the first *Koqn taker. ^Executory devises and the limitations of the trusts of J personalty, by which alone such dispositions can be rendered effectual, are exclusively the creatures of equity. It was by regarding the tenant for life as a trustee, that equity took jurisdiction, for the purpose of compelling his personal representative to execute the trust, by delivering the property to the person entitled in remainder. The cases cited in argument are amply sufficient to establish this. Then not only the personal representative of the tenant for life, but every volunteer and every purchaser with notice, on a well-known principle, are bound by the trust. If, then, as the decree establishes, (and we think correctly,) John Heyward Glover was a volunteer under his mother, he and his personal representative are equally bound to the execution of the trust, And if it were shown that Courts of law recognize the division of personal estate between tenant for life and remainder-man, this would not oust the Court of Equity of its ancient and accustomed jurisdiction. See the reasoning of the Court in King v. Baldwin, 17 Johns. Rep. 384.

We think, too, that the nature of the property sought by the bill, forms a ground of jurisdiction. It is for the specific delivery of slaves We do not feel at all disposed to depart from the principles of the decision in Sarter v. Gordon, (ante, 121,) quoted in the decree, to the reasoning of which I refer It is admitted that in some particular instances, such as are referred to in that case, where there are circumstances to give a peculiar value to the slave, with respect to the person who seeks to recover him, and to show that damages would be an inadequate compensation, there may be a ground of jurisdiction. But it is urged, that such circumstances ought to be stated and proved, before the case is taken from the ordinary tribunals of the country, to which it properly belongs.

But if it were necessary to state such circumstances, I think they are sufficiently stated in the present case. The slaves in question were a gift to the cestui que trust of plaintiff, by a friend and relation, and were received by her from the gift of another. If the Court gives that consideration to the just and honorable feeling which causes a man to set a peculiar value on an heir-loom, derived to him from his ancestors, and to regard the damages which a jury, estimating its money value, would give, as no compensation for its loss, is there less ground for its interposition *5941 Siye Him slaves — sentient and intelligent being — derived to -* him from a friend or ancestor, whom he may be supposed to love or venerate ? Are not family slaves, who are often, and I think I may say generally, attached dependants, of as much value to the feelings of the owner as a piece of family plate or a family picture ? As was said by the Chancellor in Fells v. Read, (3 Ves. 70:) “It would be great injustice if an individual cannot have his property, without being liable to the estimate of people who have not his feeling upon it.” It was urged, that an effectual remedy was given by the late act regulating the action of trover. But that act only provides that security shall be given for the forthcoming of the slaves to answer the damages which may be recovered. If the defendant will pay the damages the title of the slaves is vested in him. But it is on the ground of the inadequacy of damages as a compensation that the Court interferes.

I am of opinion, however, in pursuance of the views, in Sarter v. Gordon, that when a man states that his slaves has come into the possession of another, who refuses to deliver to him, or that he has contracted for the purchase of specific slaves and the vendor refuses to perform his contract, he states a sufficient ground of equity jurisdiction. Any other construction would render the law uncertain and impracticable. It is admitted that in some cases a bill may properly lie for a specific delivery . — as where the slave has been born and brought up in the owner’s family, or has for a long time belonged to it, so that a peculiar attachment may be supposed to have been formed for his peculiar qualities, which render him of more value to the owner than to any one else ; or where a contract has been made for a slave on account of such peculiar qualities, and the object of the contract could not be obtained without a specific delivery; or, suppose a mother to be converted by a stranger, having an infant child in the possession of the master, or a husband or wife to be so converted, leaving the other in the master’s possession. But how are these circumstances to be ascertained by evidence ? By what rule will you fix the length of time that a slave shall have belonged to his owner, so that he may be supposed to have formed a particular attachment for him ? Will you go into evidence of the slave’s character and qualities to determine whether they are such as give him a peculiar value to the feelings of his owner, or to have formed a probable inducement to the purchaser in making a contract for *him ? Suppose him to be one of a r*g25 family of slaves still in the owner’s possession, and who are ren- L dered of less value by his loss, (which is often the case,) will you fix the degree of relationship — such as that of a parent or child, husband or wife — which would authorize the Court to interfere ? Such a construction would tend greatly to litigation, and afford room for great looseness of discretion. I can think of no safe or practicable rule but that already expressed — that if a man’s slave has come into the possession of another who refuses to deliver him, or if he has contracted for specific slaves, he has a right to a specific delivery. But if the contrary appears — that he contracted for slaves generally, with no view to any particular individuals, or if they were contracted for as merchandize, to sell again, the remedy is at law.

I agree with the appellant’s counsel, that when there is a complicated question of title — when there is much conflicting testimony, or more especially when the credit due to testimony is to be weighed, a jury is the proper tribunal for the trial of those questions. And if the suggestion had been made below, I might perhaps have directed an issue. But it was not demanded below, and at the present stage of the case, when so great delay would be occasioned to the parties, and having no serious reason to doubt the correctness of the conclusion to which I have arrived, I think we are not authorized to direct it now.

The next ground relates to the admissibility of the testimony of John Huger. The rule is, that to disqualify a witness, “ the interest must be a present, certain interest, and not uncertain or contingent. So it was held that a steward was competent to prove that a fine was payable on the death of the lord, although the establishment of the affirmative might render a readmission necessary and entitle him to a fee.” 2 Stark. Ev. 145. The record must certainly be evidence to fix or rebut his liability in a future action. As observed in Cotchett v. Dixon, 4 M’Cord, 314, “ it is not enough that he has an interest in the subject-matter in litigation — it must be an interest in the event of the particular cause. ” What is the cause at issue ? The bill states that the defendant, Mrs. Glover, is in possession of certain slaves, which are claimed as being descended from those bequeathed by the will of Daniel Heyward, which the plaintiffs state *52(51 toey are PrePal'e<l to identify *by proof. The defendant requires J the proof to be made, and urges in defence that the stock of slaves bequeathed by Daniel Heyward has perished. The testimony of the witness would seem rather to be against his interest in this cause. It is not disputed but that these slaves once belonged to Mrs. Glover. If they are still part of her estate, undivided, he has a claim in right of his wife to a moiety of them, which would be defeated by the recovery of the plaintiffs. If they were divided as part of her estate, and fell to the share of John Heyward Glover, his representative would have a claim against the witness for contribution. In this cause then, he has no interest. But it was thrown out in argument, and the Court intimated that there might be just ground for the opinion, that another case might be made in which he would have an interest. If the plaintiffs should fail to identify the slaves, and if the defendant failed to prove that the stock had perished, then the estate of Mrs. Glover might be made liable for the estimated value of such a stock of slaves, she having been trustee for the remainder-man, and the witness and John Heyward Glover, having divided her estate, it might be pursued in their hands, if the plaintiffs should fail to recover in this case. This is similar in principle to the case of Briggs v. Crick, 5 Esq. N. P. C. 99 ; Duncan v. Bell, 2 Nott & M’Cord, 153; Lightner and Martin, 2 M’Cord, 514, and Harth v. Johnson, 2 Bailey, 183, In an action for the breach of warranty of soundness of a horse or a slave, the defendant’s vendor may be a witness for him, though a verdict in favor of the defendant would obviate the chance of the witness’ being made liable in a future action. It may be said, as in Johnson v. Harth, it is true, that if the plaintiffs recover against the present defendant, he will have no right of action against the witness, because he will have sustained no damage, and therefore, it may be said that the judgment will be of benefit to the witness by obviating the chance of his being made liable in a future action. But this is not the sort of interest that will disqualify a witness; nor is it in this sense the law says the verdict must be evidence for or against him. It is not like the case of an action for the breach of warranty of title, in which a verdict against the defendant would of itself be the foundation of an action against his vendor.

If the present bill should be dismissed, that would be no evidence for or against the witness, in .a future action to be brought against him. But if the present plaintiff should succeed, it is thought the decree would *5211 ev^ence ^11 toe event of such an action* as has been surmised. -1 If the plaintiff succeeds, he will have no right of action against any one in respect of his present claim, because the claim will be satisfied. The decree may be evidence, not as a judgment, but as a fact to make out the proof of his having received satisfaction. If he had received satisfaction by agreement with the defendant, this would have been equally a bar. If two persons were suspected of a trespass, or proved to have committed it, it might as well be said that one was an incompetent witness for the plaintiff in a suit against the other, because if he should recover satisfaction of the defendant, this would be a bar to an action against any one else.

The third and fourth grounds form in effect but one. In addition to what is said in the decree, I may observe that even hearsay evidence may be admitted on a question of pedigree, and this is in reality a question of pedigree. The original stock of slaves are admitted to be all dead, and the question is, whether these now claimed are their descendants ? And it comes within the qualification expressed in Whitelocke v. Baker, 13 Ves. 514, in relation to the reception of evidence of tradition. It must be from persons having such a connection with the parties, that it is natural and likely from their domestic habits, that they are speaking the truth.

I shall make a few remarks on the last general ground. Admitting the testimony of Mr.- Huger, there can be no doubt of the credit due to it. Then it is certain that at the death of Mrs. Glover, there were in the possession of John Heyward Glover, and at the plantation of Wright-field, twenty-five or thirty slaves to which the plaintiffs are entitled. It is objected that plaintiffs have not sufficiently identified them. As is said in the decree, no others are indicated as being those left by Mrs. Glover. If, as was suggested, Heyward Glover obtained the slaves now claimed by purchase from his mother, or from any other person, or in any other manner, certainly it is to be supposed that it was in the defendant’s power to show this. The particular slaves claimed were named in the bill, and the defendant put upon her defence. Failing to do so, can she complain that all presumptions should be against her, and that effect should be given to slight testimony for the purpose of identifying the slaves. Without these circumstances, I admit the testimony of Ferrabee would be very slight. I cannot doubt but that justice, though not perhaps full justice, has been done by the decree.

*In considering the plaintiffs’ grounds of appeal, — with respect i-*koo to the claim for slaves who died since the filing of this bill, the L Court is of opinion, that the decision referred to by the decree in relation to the measure of damage in an action of trover, must be confined to the particular case. Certainly the general rule is as contended for on the part of plaintiffs, and supported by the authorities referred to, that if a bailee or pawnee, who are trustees, wrongfully refuses to deliver the deposit or pledge when it is demanded, he thenceforth keeps it at his own risk, and is liable for the value, if it afterwards perishes. See Story on Bailm. 93, 231, and the authorities there referred to. The principle ■seems to apply to the present ease'; the tenant for life, or volunteers under her, being regarded as trustees. The value of these slaves must therefore be a subject of reference. With respect to the second ground, I do not perceive the evidence to charge the estate of Wilson Glover with the cattle. The memorandum said to be in his handwriting, of their being removed from Springfield, does furnish evidence of their being taken possession of by him for his own use. The same memorandum includes the slaves removed at the same time, which it is agreed remained her separate estate. The maker of the memorandum states himself to have taken charge of all the property specified. There is no other evidence whatever to charge Wilson Glover’s estate in opposition to the allegation of the bill. A reference is ordered with respect to the slaves, who died since the filing of the bill, but in every other respect the decree is affirmed.  