
    Dorsey vs. Gassaway.
    The admissions t>v counsel of certain tacts in a special verdict taken at a form' r uid between the same parties in the same art* not at a new same cati.de
    If slaves remain in the possession of the \tn h«r, jhe of must revet ded; arid whotlaH they remained in his possession, i» a matter of fact int* the jury; if they find thbv were rot in his pos* session,the bill of saléis not required to be recorded; and ii is not evidence, although it was record' ed, unless the,e&ecjitiort of it is proved.
    
      rl\> 'ay the foundation for p'roving an original deed lost, the evidence must be given to the court. ^
    Prooí being made of the. loss of an original deed of mortgage Of ¡and and slaves, dated m 1763, the insOe.viimts was admitted to he vend as legal evidence, although the deed was not recorded m the manner prescribed bv law, so far as respected the slaves in di» pme
    Where a deed is lost, or net in the power of the paily to produce it, it is only* necessary to show a;¡ examined copy, or prove the contents of the deed
    Certain facts refused to be admitted in tvidenoo to prove, that a person who purchased certain slaves, and liad.made a voluntary gift of tWun. never paid any consideration for (h< -slaves
    Certain acts and declnvatmns’of the defendant, subsequent to Ins sale of the slaves for which f.n action of replevin was brought, and before his insolvent}, are not evidence to defeat the claim oftho plaintiff
    An affidavit made by a debtor, and payment into the treasury under the tender law, admitted ins evidence to prove the nefson tvas indebted, and mads* the payment into the treasury
    Proceeding*. ih chancery under an insolvent law, are not evidence in f.ivofa* of the person who had obtained the benefit of that law, to prove au acknowledgment ai.d admission by him on his applica» tion for the benefit of that law
    A bill in chancery, with all the proceedings and decree thereon, cannot he re: d in evidence in an action between different parties» from those nam*-rt in the piocei dings
    An answer in chancery, made by the respond»fits from hifo motion derived fiom the present defendant, is not admissible in <** idevice, ftut the d» durations of tlx* defendant are admissihie evidence; and a witness may recur io the answer to ltfie-h Ins memory as to the declaration» made to hi • by the defeml’.nt
    No person will be permitted to disaffirm Ills own sale. lie cannot set up his discharge under sm inso'voit low, to disaffirm his prior acts
    If a movtg' ge of slaves was stibsia imr,* and the mov’gagor claiming the nbso'ute ownership of them, sold them for a full consideration, although a** to ihe mortgagee, the sale would transfer ony the equitable intevcst,y(t as between tin* vernier and tendee, (In op< radon oF the contract would lx* tv* pass tlu* alvolute ownership in the slaves to the vendee, and notwithstanding the after disehaig\ oflhn vendor, under an insolvent law, and his j>i/rehi»te of the slaves 1W in the mm /gap e, his ‘ui>M*quej.t; acts, in perf cling his title to the slaves, will enu e in law to confirm, and not to deft, at, hi» contract with the vendee
    If a d< bt is otro on mortgage and on open account, and partial payments arc made by the debtor.,, without any application, the taw will apply the payments (o the mortgage d«*l>t
    Declarations 'mad'.* bv the defendant before and after hiff discharge under au insolvent /aw, may he given in evidence against him
    Pav ments mad** l«j a movigegm* are not to' n« applied to discharge a debt due on the moi tcage, in favour of a purchaser of part of the property mortgaged, who had not paid for it, and who luul anide » gift thereof tó hi» -on, t»i detraad Ins creditors
    In an action of replevin. the jury may give sncli damages as they think the plaintiff is justly eu^ titled to, as an equivalent for the injury sustained
    Appeal From the General Court; The present was ;mi action of replevin, brought by the appellee for two negro slaves, James anil Harry. The defendant, (the present appellant,) pleaded'non ccpil and property. General replication ami issues joined. There had been a trial in this case in the general court at October term 1799, and judgment having been rendered for the defendant, the plaintiff appealed to the court of appeals, where the judgment was reversed, and a procedendo awarded for a new trial. See 4 Harr. %• ffl-Hen. 405.
    
      1. The defendant a| the new trial at October term 1805,' offered in evidence to the court, the admissions made by the plaintiff’s counsel in the spicisl verdict taken, at the former trial at October term i 799, to prove the existence of the mortgage therein stated.
    
      Mason, for the Plaintiff,
    objected to this being done, and cited Mahoney vs. Ashton, 4 Harr. & M'Hen. 295, 322.
    Chase, Ch. J. Facts are often admitted and stated for the purpose only of bringing a particular point of law be-; fore the court. As the finding of the jury, in the special verdict, was on the admissions of counsel, it is not evidence to proyts the existence of the mortgage.
    2. The defendant offered in evidence a bill of sale, for the negroes mentioned in the declaration, from Clcrke, adpfinistrator of Mvssell, to Edward Dorsey, one of the original defendants in this action.
    
      Mason, for the Plaintiff,
    objected to the bill of saje’s be» jng read, unless its execution was proved.
    Chase. Ch. J. If the negroes remained in the possession of the vendor, the bill of sale is required- to be recorded/ and whether the negroes remained in the possession of the vendor, is a matter of fact for th.e jury; and if they find they were not in possession of the vendor, then the bill of sale is not evidence, although it lias been recorded, without proof of its execution, it not, in such case, being a paper authorised by law to be recorded.
    S. The first bill of exceptions. The plaintiff offered in evidence that the defendant, in the year 1-782, being in possession of a number of negroes, sold them at public sale to the highest bidder; that at that sale Thomas Gassawcy, the father of the plaintiff, purchased negro. James in the declaration mentioned, and negro Eache!^ the mother of 
      Harry, the other slave in the declaration mentioned; Harry not being (hen born. That negroes lktchcl and James were then delivered by the defendant to Gassaway, who held and possessed them, together with Harry afier he was born, until 1789, /vlien he gave negroes Jumes and Harry to his son, the present plaintiff, and then delivered possession of them to him, who held and possessed them until the year 1796, when they were taken from his possession by the defendant. They were so taken some short time before the bringing of this suit. The plaintiff then proved that Janies Russell, herein after named, was in the (now state,) then province of Maryland in and during the year 1772. The defendant then offered evidence to the court (a), by the oath of Robert Young, that he was some years past the agent of Jarncs Russell, of Great Britain, and thai as his agent he was in possession of a mortgage executed, by the defendant to RusselZ; tliat the mortgage bore date in the year 1763. That he was well acquainted with the defendant and his handwriting, and that the mortgage was signed by the defendant. That he does not remember whether the mortgage was acknowledged before any judge or justice. That it was an original paper, and that to the best of his recollection, he delivered it, about 10 or 12 years ago, to James Clarke, then the administrator of Bus-sell, who liad died before that time in G. B. The defendant then read to the court the letters of administration granted to James Clarke on Russell’s estate, dated, the 11th of August 1789, He further proved by Young, that the mortgage purported to be a conveyance of a number of negroes by name from the defendant to Russell, and amongst those negroes were two, to wit, Scmpe and Cato. He further proved to the court by the testimony of Charles Walker, that Russell shipped large quantities of goods, before the year 1763, to the defendant, and that Charles Grujíame was the agent of Russell. That he was present, between the years 1760 and 1765, when Grahatne. now deceased, and William Lux, now deceased, and the defendant, were together in the counting room of Lux, at which time the defendant executed some instrument of writing, which Walker witnessed, and that he never witnessed any other
    (a) Chase, Ch. J. To lay the foundation for proving that an om. |jinal deed is lost, the evidence must he to the court. executed by the defendant, in the presence of bimself and Lux. lie further offered in evidence to the court, by Young, that tire original mortgage, herein before referred ■to, was delivered by him to Clerke, about the year 1797, for the purpose of sending the same to Udiladtlphia, to lay before the commissioners there in session, under the treaty with Great-Britain, to establish the claim of Russell. lie further offered in evidence to the court, by Edward Hull, that Clerke, the administrator of Russell, in a conversation with him lately, informed him that all the papers delivered to hire, Clerke, by Robert Young, relating to the claim of Russell against the defendant, were by him delivered over to William Cooke, Esquire, to prosecute his claim before the commissioners in Philadelphia. He then read in evidence to the court the deposition of William Cooke, Esquire, taken by consent, who proved, “that some years ago he was applied to by James Clerke, administrator of James Russell, late of London, merchant, to file a bill in chancery against. John Dorsey, and Luther Marlin, Esquire, and others, the bargainees of certain lands which1 they purchased of Dorsey, and which he had previously mortgaged to Russell; that among the papers delivered to him by Clerke, were several bonds passed by Dorsey to Russell, but tlie deponent canuot recollect whether the original mortgage, or a copy of it, was delivered to him. That he tiled the bill in chancery, and while the suit was depending, he was applied to by Edward Dorsey, now deceased, to purchase sundry negroes, also included in the mortgage, and after consulting the complainant, this deponent agreed that the, negroes should be valued by disinteiested persons. Which was done, and he sold the, negroes at the valuation to E. Dorsey, and received from him, or from some other person on his behalf, the purchase money for the negroes,-and paid the same over to the complainant. That it being afterwards ascertained that John Dorsey had not the legal title to the lands, or to some material part of there, at the time of executing the mortgage, the deponent exhibited a claim en behalf of Clerke, the administrator, to the commissioners-then sitting at Philadelphia under the treaty ofamitv, commerce, &c, between Gtcat Britain and Emética, and withdrew all. the original .papers which he had lodged in the court in the said suit, to present them, together with a memorial cn behalf of the administrator, to the commissioners, in order to obtain compensation for the money paid by John Horsey, into the trea.sury of this state, towards satis-, faction of ti\e mortgage and several bonds. That he cannot charge his memory with the particular papers referred' to, and filed with the memorial in the office of the com-, missioners, nor has he any recollection (hat any document was wanting to substantiate the claim. He has since searched among his own papers, and cannot find either bonds, or mortgage from J. Boiysey to Russell in his possession, and that whatever papers were lodged with the commissioners,, he the deponentdias heard aucl believes, have since been removed to Great Britain; and from his not being able, to find any of the said papers,, the depommt believes they, were all lodged by him. with the commissioners, and are. now in their possession pj Great Britain.”
    
    The foregoing evidence was offered by the defendant to-lay a foundation for proving that a deed of mortgage for certain negroes was executed by tho-defendant to James, Russell in 1763, under and through which the defendant claimed the negroes for which the present suit is brought,, and that the deed of mortgage is not hi the power, possession or control, of the. defendant The defendant then produced an original record book, one of the land records of the general court, and offered to read to the court and jury the inspexhnus of the deed, found on the records of the said court, from (lie defendant to Russell, dated the 6th of December 1763,^ and the marginal entry in the record book, stating said deed to be examined, as evidence .of the contents of the original deed of mortgage, proved to have been executed by the defendant to Russell in 1763. To the reading of this paper from the record book, as evidence, the plaintiff objected.
    
      Shaajf, Mason, and Johnson, .for the Plaintiff,
    cited 1 Morg. Ess. 159, 160. Page’s case, 5 Coke, 54. Style, 445. Trials Per Pais, 355, 434. Eden vs Chalkill, 1 Keb.117. Cheney’s Lessee vs. Watkins, 1 Harr. & Johns, 527. Hall vs. Gittings’s Lessee, (ante 380.) Peake’s Evid, 97, 110; & Bull. N. P. 255, 256,
    
      Martin, (Attorney General,) and Key, for the defendant,
    cited Hall vs Gittings’s Lessee, (ante 380.) Peake’s Evid. 96; and 1 Morg. Ess. 161.
    
      Chase, Oil. J. The question before the csJurt now, is different from what it was on the former trial. Here the defendant has laid a foundation whereon 16 authorise the f/uprxiinn» of the deed to be road; and the question is; what other kind of evidence will be sufficient for that purpose?
    'Where a deed is lost or not in the power of (he party to produce if, it ir, only necessary to show an examined copy, or prove the contents of the paper.
    The court consider the inspeximus in this case lo be á true copy. The clerk had authority to record the deed as to the real estate, and the copy is good as to the real estate, if it is a trae copy as to the iand, it is equally so is to the personal estate. The court consider it the next best evidence to the deed itself, and far preferable to parol proof,
    This case is distinguishable from that of Cheney vs. 77ut-kins. in that case there was no question about the inspe.xlunts of the deed, that the court recollect of.
    in the case of Gittings vs. Hall, it. was the inspaximns of an ancient deed which needed no recording, and where tin; clerk had no authority to record it; but as the possession had gane with the deed, it was on those two grounds read.
    The court are. of opinion, that the inspeximus of the deed of mortgage, from the defendant to Jumes Russell, is legal evidence, and admit the same to be read in evidence to the jury. The plaintiff excepted.
    4. The stand, bill of exceptions. The defendant then read m evidence an affidavit, (on the files of the treasury,) made by him on the I'Uh of May IT'S!, before Allen Quynn, Esquire, a justice. of die peace oi'/Lme-Anindcl county, £Sse 2 (liter. Eat. 2Ü0, and the ad of October 1780, ch- 5, ,<;. 11,] lie also read in evidence, the entry in the books of the treasurer, of the payment into the treasury by him, the defendant, on account of a debt due to Jumes Russell, [See, 2 Jiurr. J7.it. 9ñi) ami to I, anil the ad of October 1730, ch. 5, s. 11.] lie also produced ami offered to read the record and proceedings in the court of chancery on his obtaining the benefit of an act of insolvency, to prove that FfilHarn M'Laugldin and Archibald Moncreijf, were duly appointed.his trustee . He also offered in evidence, that M(Laughlin and Moncreijf respectively accepted of the trust, and that M'Laughlin died about the year 1795, and that Moncreijf survived him; and also offered to read in evidence, from the records of the general court office, certain entries of a suit brought in that court in the year 1797,- by Moncreiff, as surviving trustee of the defendant, against Thomas Gassaway, and the renewals thereof. He also offered to read in evidence the' record and proceedings in the court of chancery in 1797, of Thomas Gassaway’s having applied for and obtained the benefit of an insolvent law, in order to prove that Thomas Gassaway never paid any consideration for the negroes before his voluntary gift of them to his son, the plaintiff, nor at any time since.
    Chase, Ch. J. The court refuse to admit the above tactsto be given in evidence to the jury, to prove that Thomas Gassaway never paid any consideration tor the negroes before his voluntary gift of them to' his son, the plaintiff nor at any time since; the court being of opiuion, that the acts and declarations of the defendant in this case, subsequent to the sale by him to Thomas Gassaway, and whatever was consequent thereon, are not evidence to defeat the claim of the plaintiff. But the court arc of opinion', that the affidavit and payment into the treasury, by the defendant in 1781, prior to the sale by him to Thomas Gassaway,are. admissible evidence to prove the defendant was-indebted to ,Tames Russell, and made the payment into the treasury in the manner therein stated. The defendant excepted.
    
      5. The third hill of exceptions. The defendant then-read in evidence, the affidavit made by the defendant before Mien Quynn, and on the files of the treasury; also the entry in the books of the treasurer, of the payment by the defendant into the treasury on account of a debt due to Russell; and also produced and offered to read the record and proceedings in the court of chancery, on the-application of the defendant, and his obtaining the benefit oían insolvent law, to prove the acknowledgment aild admission of the defendant in 1787, that his mortgage to This-a sell in 1765 was then outstanding unsatisfied. The defen- , 3 oant then prayed the Opinion of the court, and their direction to the jury, that such evidence, though subsequent to tire sale of the negroes by him to Thomas Gassaway, is competent evidence against Gassaway, oí- the plaintiff, he the defendant then holding and possessing the residue of the mortgaged property, or part thereof.
    Chase, Ch. J. The court reject the évidence. The defendant excepted.
    6. 'The fourth bill of exceptions. The plaintiff theh produced, and offered to read in evidence, (for the purpose alone of proving that the mortgage from the defendant to James Russell was paid and satisfied before the commence-merit of the war between America and Great-Britain,) a bill in the court of chancery filed by James Clerke, administrator of Russell, against Luther Martin, William Buchanan, Archibald Moncreiff Robert Dorsey, and Wm. IT. Dorsey, with all the proceedings, and the decree of the chancellor thereon. To the reading of which the defendant objected.
    Chase. Ch. J. The proceedings are between different parties, and, therefore, cannot be used as evidence in this case. If the decree had been that the mortgage debt was unsatisfied, it could not be used against the plaintiff, and the rule must be mutual.
    Although the answer is in the handwriting of the defendant, yet lie may have Only acted as a clerk. He has ilot himself sworn to it.
    The court refuse to let the proceedings be read to the jury for the purpose required by the plaintiff’s counsel. The plaintiff excepted.
    7i The fifth bill of exceptions. The plaintiff then cross examined Robert Dorsey, a witness produced on the part of the defendant, and proved by him, that he appeared, together with Archibald Moncreiff and William II. Dorsey, as the trustees of the defendant in this cause, to a bill in the court of chancery filed against them by Clerke, administrator of Russell, and made the answer, now produced, to that bill. That he obtained his knowledge of ilie respective facts, stated in that answer, from the de* feftdant ill this cause, and from his boobs, and that the an» swer is in. the handwriting of the defendant in this cause. The plaintiff then prayed the opinion of the court, and their direction to the jury, that if the jury are satisfied, from the evidence, that the respondents, named in the said answer, obtained their knowledge of the facts stated therein from the defendant, and the answer is iii the handwriting of the defendant in this cause, that then the answer is evidence to prove the mortgage debt had been discharged as is stated in the answer.
    Chase, Ch. J. TÍie court are of opinion, that the declarations of the defendant are evidence admissible to the jury, and that the witness may recur to the answer to refresh his memory as to the declarations made to him by the defendant. But the court refuse to allow the answer to be read in evidence to the jury. The plaintiff excepted.
    8. The sixth bill of exceptions. The plaintiff then offered in evidence, by the testimony of Robert IJorseyt that the contract and purchase made by Edward Dorsey, with and of Williám Coohe, esquire, of the negroes mentioned in the declaration, as stated in the deposition of Cooke, was made by Edward Dorsey, at the request and 'for the benefit of the defendant, and that the money or price paid to Cooke for the slaves, Was the money of the defendant,* that Edward Dorsey, or his estate, he being dead, have no interest in the slaves, but. that the defendant is the only person claiming under the purchase from Cooke. The defendant further offered in evidence, that he purchased the negroes in controversy in 1796, through Edward Dorsey, from Clerke, the administrator of Russell; that the negroes were sold by the defendant to Thomas Gassaway, under whom the plaintiff’ claims, in 1782. And to prove that he the defendant, between 1782 and 1796, obtained the benefit of an insolvent law, he produced in evidence the insolvent law passed at April session 1787, ch. 34,' and also produced and read in evidence the record, proceedings, and release of him the defendant, under that insolvent law. He further offered in evidence, that the negroes in controversy are the descendants of negro Rachel, included in the mortgage from the defendant to Russell, and sold, as before stated, by the defendant 
      Thomas Gassmoay in 1782. The plaintiff then prayed the court for their opinion and direction to the jury, that if from the evidence the jury are satisfied tiiat the purchase of the negroes named in the declaration made by Edward Dorsey, as stated in the deposition of William Coolie, was made by Edward Dorsey, by the authority and direction of the defendant, and for the benefit of the defendant, and that the purchase money paid to Cooke for the negroes was the money of the defendant, that then the plaintiff is entitled to their verdict for the negroes in the declaration named, and damages for the detention thereof.
    Chase, Ch. J. The defendant cannot be permitted to disaffirm his own sale. He cannot be suffered to set up his discharge under an insolvent law to disaffirm his prior acts.
    The court are of opinion, that if the jury find the mortgage was satisfied in the year 1782, when the defendant sold the negroes to Thomas Gassuipuy, that the plaintiff has a good title to them.
    The court are also of opinion, that if the mortgage was Subsisting in 1782, and the defendant sold the negroes, claiming the absolute ownership in them, and for a full consideration, although as to James Russell his sale would transfer only the equitable interest in the negroes; yet as between the vendor and vendee, the operation of the’contract would be to pass the absolute ownership in the negroes to the vendee, ami according to good faith and honesty the subsequent acts of the defendant, in perfecting his title to the negroes, will enure in law to confirm, and not to defeat, his contract with Thomas Gassaway. The defendant excepted.
    9. The seventh bill of exceptions. The plaintiff then offered in evidence, by the testimony of Robert Dorsey, that he understood from his father, the defendant, since the year 1790, that he had made considerable payments and remittances to Russell, between the years 1783 and 2776, in sterling money, amounting to <£3,915 18 2; that Russell’s administrator claimed the right to apply the money so paid to the satisfaction of certain debts due from the defendant to Russell, upon open account, contracted after the date of the mortgage, and that the representatives of the defendant claimed to apply the payments to the satisfaction of the mortgage. The plaintiff then prayed the court for their opinion and direction to the jury, that if they are satisfied that the said sums were paid at the times above stated, and there is no evidence to-satisfy them that the payments when made were particularly applied to any specified debt, either by the defendant or Russell, that then the law will apply the same to the satisfaction of the mortgage,
    Chase, Ch. J. There can be no doubt but the law wilf apply the payments to the satisfaction and discharge of the mortgage. The court give the direction prayed. The defendant excepted,
    10. The eighth bill of exceptions. The defendant then prayed the opinion of the court, and their direction to the jury, that the declarations of the defendant, which are said to have been made by him since the sale made by him to Gassaway, and since the insolvency of him the defendant^ cannot be used in evidence by the plaintiff to the injury of the title and interest oí Russell, or any other person claiming under Russell.
    
    Chase, Ch. J. The court are of opinion, that the declarations-of the defendant, are evidence against him. The defendant excepted.
    11. The ninth bill of exceptions. The defendant then prayed the opinion of the court, and their direction to the jury, that as the defendant only insisted tfiat the mortgage was paid by certain payments being made, which ought to be applied in the first instance to the mortgage in preference of other debts, not because he did not owe more, bul that what he paid should be first applied to the mortgage — . that the principle,' that the payments so, made, should apply to the discharge of the mortgage, should only be carried into effect in favour of bona fids purchasers having bought and paid for the articles, and pot in favour of the plaintiff', whose father had not paid for the negro.es by him pur? ■chased.
    ■ Chase, Ch. J. The court are of. opinion, that the payments made by the defendant to Russell, if the jury shall fiad they were made gs stated., ought to b$ ^applied tp the discharge and satisfaction of the mortgage in favour of the plaintiff, unless the jury shall find that Thomas Gassawmj made the gift to his son, the plaintiff, to defraud his creditors. The defendant excepted.
    12. The tenth hill of exceptions. The defendant further prayed the opinion of the court, and their direction to the jury, that unless the jury believe that the mortgage money was satisfied before the sgle piacle by the defendant, or that the plaintiff, or his father, under whom he claims, had paid the purchase money for the negroes to the defendant or Bussell, or some person entitled to receive, the same, that the plaintilF was not entitled to recover any other than nominal damages.
    
      Martin, (Aííorney-Cíeneral,) for the Defendant,
    cited 3 Bac. Jib. tit. Grant, (D.) 382. Walker vs. Constable, 1 Bos. & Pull. 306. Moses vs. Macferlin, 2 Burr. 1005; and Esp. N. P. 101.
    Chase, Ch. 3. The jury may give what damages they think the plaintiff is justly entitled to as an equivalent for the injury sustained.
    The court are of opinion, that it is within the province of..the jury to ascertain and fix the quantum of damages, as an equivalent for the use of the negroes, according to what they may think right on consideration of the evidence; and that they are not lestrained, by any principle of law operating on this case, from the full exercise of their judgment. The defendant excepted.
    It was admitted, and it is to be considered as part of the statement in this cquse, on which the couit has given its opinions, that James Eussel!, the alleged mortgagee of the defendant, was in the year 1763 a subject of bis Britannic majesty, residing in Great Britain.; that in the year 1772 he was in Maryland on a visit, and soon returned to Great Britain, and continued to reside there from the year 1774 to his death in 1787, a subject of the crown of Great Britain; and that on the 4th of July 1776, the then province, now state of Maryland, became an in— dependent government, and from that day until the SOth of September 1783, open war existed between this state and the king of^ ¿íreat Britain.
    
    
      Vewliot anil judgment for the plaintiff. The defendant appealed to this court, and on the death of the appellee, his executors were made parties.
    The questions arising under the second, third, sixth, se» vcnth, eighth, ninth and tenth bills of exceptions, were argued before Polk, Buphanan, Nicholson, and Earle* J. by
    Martin; for the Appellant;
    and by
    Johnson, (Attorney-General,) for the Appellee.
    
      
      
         The schedule returned, stated that Russell was a creditor, and Tkomas Gassaway a debtor.
    
    
      
      
        fbJ Gassaway, in his schedule, returned the trustees of tho defendant his creditors.
    
   The Court

agreed with the General Court in the opinions expressed in the several bills of exceptions taken on the part of the defendant in that court.

judgment affirmed.  