
    Chapmans v. Chapman.
    Thursday, November 8, 1810.
    1. Evidence — Record in Another Suit. — A record of one suit cannot be read as evidence in another, on the ground that the defendant and one of the plaintiffs in the latter suit were parties to the former, and that the same point was in controversy in both; another plaintiff, and the person under whom both the said plaintiffs jointly claim, not having been parties to such former suit.
    2. Same — Same—Objection in Appellate Court. — In such case, the circumstance that the “writings and evidences” in the former suit were read at the hearing of the latter, without any exception taken at that time appearing on the record, is no. proof that this was done by consent of parties, and does not preclude the objection from being taken in the appellate Court; the defendant in his answer having objected to the admission of the verdict and other proceedings in the former suit, but offered to agree that the depositions only might be read; to which offer no assent appeared on the part of the plaintiff.
    Upon an appeal from a decree of the late Judge of the Superior Court of Chancery for the Richmond District, in 399 % suit brought by Nathaniel Chapman against George Chapman, sen. his uncle, and revived, on the death of the said Nathaniel, by a bill of revivor on behalf of George Chapman, jun. and John Chapman, his brothers and co-heirs.
    The original bill stated that Nathaniel Chapman, grandfather of the plaintiff, and a second Nathaniel Chapman, heir at law of that grandfather, had successively died seised and possessed of a very considerable real and personal estate; and that, upon the death of the latter, the same descended to Pearson Chapman, whose eldest son and heir at law the plaintiff was: that Constant Chapman, widow of the elder Nathaniel, (whose children were the second Nathaniel, the, said Pearson, George the defendant, and sundry daughters,) prevailed on the said Pearson to convey to the said defendant, by three deeds, a tract of land in Fairfax County, some lots in the town of Alexandria, and a tract of land, lying in Fauquier County, called the Pig-Nut tract; by promising to secure to him, either by wiil or deed, as much, or nearly as much, of the estate which then was at her disposal, as she should leave to the said defendant; that these deeds expressed the 1 ‘consideration of natural love and affection, and of ten shillings current money, paid to the said Pearson by the said George;” but the actual, or principal consideration was the promise aforesaid; that two of the three deeds were acknowledged by the grantor, in open Court, in the year 1766, and duly recorded, but the third (which was for the Pig-Nut tract) was acknowledged in the presence of two witnesses only; that, having seen his mother’s will, giving nearly all her estate to her son George, the defendant, the said Pearson obtained that deed, and suppressed it; that the defendant had sued the said Pearson in the County Court of Eauquier, to compel a renewal of that deed; and that suit abating by the death of Pearson, brought another in the High Court of Chancery ag'ainst George Chapman, jun. his devisee; that, in the year 1793, George Chapman, jun. claiming as devisee, commenced an action of ejectment, for the said Pig-Nut tract 400 of land, in the District Court *of Dumfries, against the said George Chapman, sen. who thereupon tiled an amended bill, in the High Court of Chancery, praying an injunction to stay proceedings on the ejectment; which was granted upon the condition of confessing a judgment at law, and relying upon his equitable title alone; (in which bill of injunction he alleged that the number of witnesses to the deed for the said Pig-Nut tract, not being sufficient to have it admitted to record, it was returned to Constant Chapman to get it more fully authenticated, and was, for that purpose, by her delivered to her son Pearson the grantor; under a solemm assurance from him that he would acknowledge it in the presence of a third witness, and return it to her; instead of doing which, he had destroyed it, on the pretext that he had found a will, executed by her, wherein she had violated her promise, made him when he executed those deeds; having left him no part of her estate, or, at most, a very inconsiderable legacy;) that the said George Chapman, jun. the devisee as aforesaid, answered, and stated the said Pearson’s motive for executing the deed which he had afterwards suppressed; that, after taking much testimony on both sides, the Court directed an issue to be tried to ascertain whether the said Constant made the promise before mentioned; and the Jury found that she did; that, thereupon, the Chancellor dismissed the said bill of .injunction, and George, the devisee, obtained possession by virtue of the judgment in ejectment; which decree of dismission was affirmed by the Court of Appeals.
    The bill proceeded to state that the record in the said suit between George Chapman, sen. and George Chapman, jun. so far as the same concerns the said promise, had an intimate connection with the present suit; the present defendant having been a party thereto, and having had an opportunity of cross-examining all the witnesses: it therefore prays that the said record, with all the exhibits in that suit, may be taken as part of this bill, and that all matters contained therein, tending to the establishment of that promise, may be received as proper evidence in this cause; averring 401 *that the promise so found by the Jury in that suit was never complied with, but fraudulently broken by the said Constant Chapman ; and therefore that the said deeds were obtained from him by fraud.
    The prayer of the bill was for a full answer to the premises, a surrender of the deeds, and general relief.
    The defendant answered very fully; admitting the possessions, deaths and intestacies of the first two Nathaniel Chapmans, and the descent on Pearson Chapman; but denying that Constant Chapman made the promise mentioned in the bill; and alleging that Pearson Chapman could not have seen his mother’s will before he refused to return the deed for the Pig-Nut tract; for the refusal was in 1766, and the will was made in 1767. He objected to the admission of the verdict, and proceedings in the former cause, as evidence in this; but was “willing to consent that all depositions in the said suit should be read by mutual consent; a right being retained to either party to examine such of the same witnesses as are now alive, and to exhibit other new testimony.” No such consent appears to have been given on the part of the plaintiff.
    To this answer there was a general replication ; after which the plaintiff died intestate, and the suit was revived by his co-heirs above mentioned; the bill of revivor, praying “that the suit and the proceedings therein stand revived in their names, and be in the same plight and condition they were in at his death;” and seeking also a discovery of rents and profits. The defendant answered this bill; discovering, in general, the rents and profits, and averring that they arose principally from the possessor’s improvements. Commissions were awarded, (without any replication to the last answer,) and some depositions were taken.
    The cause came on finally to be heard, “on the writings and evidences formerly read in the cause between two of the parties,” (George Chapman, sen. and George Chapman, jun.) “and on the present bill and answer;” on consideration 402 *whereof the Chancellor dismissed the bill with costs; from which decree the plaintiffs appealed.
    This case was argued by Warden and Wickham, for the appellants, and Botts and Wirt, for the appellee.
    Many points were made, and elaborately discussed: but the decision of this Court having turned on one point only, and that being sufficiently illustrated by the ensuing- opinion of Judge Tucker, (with which the other Judges agreed,) the arguments of counsel are omitted.
    Saturday, November 30.
    
      
      Evidence — Record in Another Suit. — See the principal case cited in Baring v. Faning, 2 Fed. Cas. 794; foot-note to Paynes v. Coles, 1 Munf. 373, for the proposition laid down in the first headnote.
      The principal case is also cited in Brown v. Johnson, 13 Gratt. 650.
    
   The Judges pronounced their opinions.

JUDGE TUCKER,

after stating the case, proceeded as follows.

A preliminary question in this case is, whether the record, verdict, depositions and exhibits in the before-mentioned suit between George Chapman, the uncle, defendant in the present suit, and George Chapman the nephew, one of the parties complainant in the present suit, originally brought by his elder brother Nathaniel, and now revived in the names of himself and his brother John, as co-heirs of Nathaniel, are to be considered as evidence in this cause, or not.

The general rule as to giving verdicts and judgments in evidence is, that they are not to be admitted but between parties, or privies; to which general rule there are some few exceptions, one of which is that, where a 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; for, in such a case, what any of the family, who are dead, have been heard to say, or the general reputation in the family, entries in family books, &c. are allowed, But this is not such a case: hearsay was never yet permitted as evidence to prove a promise, or the considera403 tion upon which a deed *was made. The general rule, then, must prevail. A corollary from that rule is, that nobody can take benefit by a verdict, that would not have been prejudiced by it, had it gone contrary, According to the general rule and its corollary, Nathaniel Chapman could not avail himself of the verdict between his younger brother, then in full life, and his uncle; for he was not his heir, nor did he claim the lands under him. Neither could he be prejudiced by that verdict between those parties; because he claimed as heir to his father Pearson Chapman, whose heir his younger brother was not, nor, as the laws then stood, could be. Consequently, had there been no abatement of the suit, the record and verdict in the former suit, between George the uncle, and George the brother, could not have been admitted as proper evidence in this suit. Is the case altered by the abatement, and the revivor in the names of George the brother and John his brother, as heirs of Nathaniel? I conceive not. Whatever right George the brother might have, in an original suit between himself and his uncle George, to avail himself of that verdict, he is to be regarded, in the present suit, only as one of several heirs of his brother Nathaniel, all of whom collectively, represent that brother as his heirs, or more properly as his heir; according to the known rule of law that all the heirs in parcenary make but one heir, As, therefore, he comes to revive and continue the suit jure representationis, the suit must remain in the same plight and condition, according to the prayer of his bill of revivor, as if his brother Nathaniel, the original complainant, were still alive.

Again; whatever personal right George might have to avail himself of that verdict, that right was not communicable to another, not claiming as a privy under him, Therefore George, in a joint suit brought by himself and his brother John, who does not claim under him, but independently of him, cannot be entitled, from the bare circumstance of their being joint complainants in the same suit, to communicate 404 *to that brother the benefit of that verdict, to which John was neither a party, nor privy; and by which he could not possibly have been prejudiced. Therefore, taking the matter either way, I think the record in the former suit inadmissible as evidence in this cause. This case appears to me to be much stronger than that of Payne v. Coles, lately decided: in the decision in that case I cheerfully acquiesce, and think it furnishes an additional reason for my present opinion.

As to the depositions; the offer by the defendant to admit them to be read, alone, without the verdict or other parts of the record, not being accepted by the complainant, who insisted on the whole being admitted as evidence, the matter remains as if no such offer was made; and the same reasons will apply for rejecting them, as for rejecting the verdict.

I am therefore of opinion that the decree be affirmed.

JUDGE ROANE

would have assigned his reasons for affirming the decree, had they1, not all been anticipated in the opinion just delivered. He contended himself, therefore, with expressing his concurrence ; observing that the record of the former suit was not admissible as evidence in this; and, that being excluded, there was no evidence to prove the promise, alleged in the bill to have been made bjr Constant Chapman, on which the plaintiffs’ claim is founded. Of course, the bill was properly dismissed.

JUDGE TEEMING.

It is the unanimous opinion of the Court that the decree dismissing the bill be affirmed. 
      
       See Pegram v. Isabel. 2 H. & M. 200.
     
      
       Bull. N. P. 231, 233.
     
      
       Hard. 472; Gilb. Evid. 34, 35, Viscountess Pembroke v. Currier.
     
      
       Co. Litt. 163.
     