
    [Chambersburg,
    October, 1823.]
    STILES against NELLY, a Mullato.
    IN ERROR.
    A return of a mulatto child under the 4th sect, of the act of 29fh March, 1788,' as “ born about the 15th November, 1780,” is a good return, where it sufficiently appears that the entry and oath of the registry were made by the owner of the mother.
    Though the sex of the child and occupation of the owner were omitted in the re turn, yet if they aré statéd in the registry by the clerk the defect is cured.
    Error to the Court of Common Pleas of Cumberland county, in a homine replegiando brought by Nelly, a mulatto, the plaintiff below, against Edward, Stiles, the defendant below, in which judgment was entered for the plaintiff below, by consent of parties.
    The defendant below claimed Nelly as his servant till 28, under a transfer from Sarah E. Duncan, widow of John Duncan, deceased, who was. the owner of Rachael, the mother of the said Nelly: and the question was, whether Rachael had been duly registered as a slave by the said John Duncan, pursuant to the act of assembly of the 29th March, 1788. On the 27th March, 1789, a paper was filed in the office of the clerk of Quarter Sessions of the county of Cumberland, in the following words and figures, to wit: “ Negro Rachael, the property of John Duncan, born about the 15th November, 1780. Hannah, the property of Samuel Postleihwaite, born about the 19th May, 1782. Frank, the property of Samuel Postlethwaite, born about the 5th January, 1784. Sworn before John Agnew.” (Indorsed.) "No. 34 and 36. 27th March, 1789, Duncan 8' Postlethwaite.” The clerk then made the following entry in the book kept in his.office for the recording of negro and mulatto slaves.
    Owners. 34, John Duncan. 36. Samuel Post5 waite Townships. Occupation* 1 Carlisle. Carlisle. Merchant. Gent. Males. Prank. Females. When born Rachael. 15th Nov. 1780. 5th Jan. 1784. time ent.
    
      Alexander, for the plaintiff in error.
    A construction favourable to liberty has always been given to the acts for the abolition of slavery, especially to tha’t of 17S8. By the constitution of Pennsylvania, art. 8, sect. 1, adopted in 1790, after the passage of these acts, all persons are prima facie free: and are entitled to be so considered, unless the party claiming their service, can show a title to it by the terms of some law, The master must show his right, and that the terms of the law have been complied with. Commonwealth v. Craig, 1 Serg. & Rawle, 24. In the record of Rachael there are many defects.
    1. The time of her birth is stated with too little precision: she is returned as being born £< about the 19th May, 1782.” Are-turn of this kind was held by this court to be insufficient in Commonwealth v. Greason, 4 Serg. & Rawle, 425. There the slave was returned as born “ on or about the 23d May last.” In Commonwealth v. Craig, the return was held insufficient on account of its want of certainty.
    2. The return can only be made by the possessor, or by the act of 1780, the owner, and he must swear to it.
    
    Here it does not appear who made the return on oath, and the whole is uncertain and informal, 1 Sm. L. 497. Essex v. M‘Culloch, 4 Yeates, 115, S. C.
    
    3. The occupation is not stated. In Wilson v. Belinda, 3 Serg. & Rawle, 396, the record stated none, and parol evidence might perhaps have been given to prove that the owner had none, being consistent with the record. But -here Duncan was a merchant, and the return states no profession. Parol evidence of his profession would therefore go to enlarge and vary the return.
    4. The sex is not stated. This is fatal. Wilson v. Belinda, 3 Serg. & Rawle, 396, Although the sex, is a fact most easy' of proof, yet it has never been attempted to prove it by parol. Even a strong ground of inference apparent on the record, is not enough: otherwise the names, in all the cases on the subject, would have left no room for doubt. Respublica v. Blackmore, Addison, 284. 2 Yeates, 234. S. C.
    
    But the point in this cause is, can the registry, made by the clerk supply the defects of the return, made by the master. And it is a question of some importance in Pennsylvania at the present day.
    Both acts of assembly Require all the particulars to be stated by the master in the return, in writing, and the clerk is to enter in the registry, those particulars which are returned in writing by the master. The return can be made by no other person; of course, not by the clerk. It cannot be by parol. Now if the clerk registers any thing more than is in the return in writing, or different from it, it must be unofficially, without oath, from mere hearsay, opinion, name, or his individual knowledge or belief. Though these things may be on recora, they are not of record. Salmon v. Rance, 3 Serg. & Rawle, 315. 318. 3 Serg. & Rawle, 103, per Tilghman, C. J. 4 Serg. & Rawle, 299, and authorities cited. It resembles a judge’s notes of testimony; or a clerk’s entry of issuing and return of a writ which is no evidence, if the writ can be found. Although the docket is a public record and belongs to the office; the officer is sworn; he is required to make the entry, and is paid for “entry and return,” by the fee bills of 1795, Purd. Ab. 159, of 1814, & 7, and of 1821, & 6, Vincent v. Huff, 4 Serg. & Rawle, 300. Moore v. Buchanan, at Chambersburg, 1821. 1 Gilb. Evid, 10, 11. The registry was not intended to be equally efficient with the return; for one is an original, the other a copy; and then there would be two records of the same thing, for the same purpose, with the same effect, and in the same place. The registry in the docket, like that of the prothonotary, was intended for convenience of reference, regularity, permanency, and to meet the casualty of the loss or destruction of the loose return. The registry will be presumed to be a copy of the return, where the latter cannot be found, but not otherwise. As a copy, it is inadmissible in this case. 1 Phil. Evid. 167. 4 Cranch. 70. Jackson v. Lucett, 2 Caine’s Rep. 363. Parol evidence is not admissible as to a part respecting which there is a writing. 1 Serg. 4 Rawle, 27. 160. Addison, 380. 4 Dall. 340. The point we contend for is explicitly laid down in the same way by Gibson, J. in the case of Wilson v. Belinda, 3 Serg. & Rawle, 401.
    
      Carothers, contra.
    
    1. As to the objection, “ that the time is stated with two little precision,” by the proviso in the 4th section of the act of the 1st of March, 1780. Rachael the/mother of the defendant in error, was a servant without being registered until the passage of the act . of the 29th March 1788. And by the 4th section of the act last mentioned, all that was required of the master on that point was, to state the age of the servant “ to the best of his knowledge.” The return states that Rachael was born “about the 15 th of No
      
      vember, 1780. This must mean some time in that month, which Would be sufficient. It leaves no doubt that she was born after the lsi March 1780, and before the 29th March, 1788, the dates of the acts respectively. The case of the Commonwealth v. Greason, 4 Serg. & Rawle, 425, and the case of the Commonwealth v. Craig, 1 Serg. & Rawle, 23, relied on by the counsel for the defendant in error, being both cases of children born after the passage of the act of 29th March, 1788, do not apply. We admit that it must appear to the court, that at the time the registry was made the person registered was legally a subject of the act, and this is the point decided in both these cases. But in the case under consideration, it appears beyond doubt, that Negro Rachael was not only a legal subject of registry, but was also registered in due time, namely, before the 1st of April, 1789, which was all the law re.quired. The presumption is, that the return stated the age of the servant according to the best of the knowledge of the person making it.
    2. In answer to the second objection on the part of the defend? ant in error, “that the return could only be made by the possessor and he must swear to it,” he observed that the act does not require it in terms; nor does the spirit of the law warrant the position. By the 4th section of the act of 29th March, 1788, it is provided “that the possessor shall deliver, or cause to be delivered,” &c.; from which it is evident, that returns other than those made out by the possessors were intended. The facts, also, required to be reported to the clerk and attested, were such as, in the nature of things, might be as well known to others as to the master or possessor. All the law or reason requires, is, that the return should be made by the procurement of the master, and verified by the oath of a person knowing the facts required to be set forth. But the fact assumed, and upon wffiich this objection is founded, is not supported by the return. The return was made by John Duncan, the owner and possessor. At all events, the presumption is so. Although in the same paper is included the names of Negroes the property of another person, yet it is stated that the return wras verified by oath, and the presumption is, that it was by the oath of each of the parties interested in the return.
    All the other objections may be considered together as they all depend on the question, whether the record by the clerk can be taken into consideration as foi'ming part of the registry of Rachael ?-
    
    It appears by the 4th section of the act of 29th. March, 1788, that the clerk is required to administer the oath as well as to make and presex-ve I’ecoi’ds, copies and extracts of which propexdy certified are made evidence. The verification and filing of the return by the possessor is coixsidcred by the act as being cotemporaneous with the making of the record, and the whole when made constituting the act required to be done. In this case it appeared the oath was administered by the clerk, and it being his duty under the law to make out the record at the same time, the presumption is that all the facts stated on the record were communicated under the oath administered. The act of assembly enforced the duty on the clerk to record the facts as reported to him, the legal presumption is that he did his duty. In the case of Wilson v. Belinda, 3 Serg. & Rawle, 399, the chief justice says, ‘‘that the addition of esquire after the name of Montgomery, inserted in the registry by the clerk, although not contained in the return signed by Montgomery, and made in a separate paper, may fairly be taken into consideration.” This appears to have been the opinion of the majority of the court, and is, therefore, the law. If so, then there is an end of the question. Taking the paper filed in connexion with the registry every requisite required by the act of 29th March, 1788, is fairly set out, and the registry is valid. There can he no good reason for saying, that the registry would cure the defect in the paper filed, so far as it relates to the occupation, and would not supply the omission of the sex. The decision in the case of Wilson v. Belinda, is directly in point.
   The opinion of the court was delivered by

Tilghman, J.

Edward Stiles the plaintiff in error claims the service of Nelly, the defendant in error, until she shall be of the age of 28 years. The cause depends on the registry of a negro woman named Rachael, (the mother of Nelly) entered in the book for recording of negroes and mulatto servants, and slaves in the county of Cumberland. The register contains every .particular required by the law. Rachael is entered, as a female, born the 15th November 17S0, owned by John Duncan, of Carlisle, merchant. The oath of the owner was taken before the clerk of the sessions, the 27th March 1789. But the writing delivered to the clerk by the owner, which was filed in the public office, differs •from the register in several respects. In that writing, Rachael is said to have been born about the 15th November 1780; and the occupation of the owner, (merchant) and the sex of Rachael, (female) are omitted. Several exceptions have been taken to this register.

1. The time of birth is stated with too little precision — “ about, the 15ih November 1780. In support of this exception, the case of the Commonwealth v. Greason, was cited, (4 Serg. Rawle, 42.5.) There the entry was of a child, born on or about the 23d of May last, and bore date 21st November 1792. It was determined that the register was defective, because the act of 29th March 1788, directs, that the entry should be made within six m.onths after the birth of the child, and it was altogether uncertain, from this entry, whether it had been made within the six months. But the present case is quite different. It was not necessary that the register of Rachael, who was born before the 29th March 1788, should be made within six months from her birth. On the contrary, it was not required by the act of 1st March, 1780, that she should be registered at all. But the act of 39 th March, 1788, (sect. 4 ) directed that all persons possessed of children born after the 1st March 1780, who would, by the said act, be liable to serve till the age of 28 years, should have them registered, on or before the 1st April 1789; and that the owner should swear to their age, (to the best of his knowledge.) All that was necessary, therefore, was, to show, that Rachael was born after the 1st March, 1780. Now surely, when it is sworn that she was born about the 15th November 1780, it is asserted with sufficient certainty, that she was born after the 1st March 1780. The act does not require that the oath should contain precise certainty, it would have been unjust to require it; because there was a period of six years, between the act of 1st of March 1780, and that of 29th March 1788. Therefore it is only required that the owner should swear to the best of his knowledge. The law is cautiously drawn with regard to this point, I am of opinion, it has been complied with.

2d. The 2d exception is, that it docs not appear, that the entry and oath were made by the owner of Rachael. I think it sufficiently appears although the entry was made in a confused manner. It mentions Rachael, the property of John Duncan; and two other negroes, the property of Samuel Postlethwaite-, then came the words following, sworn before John Agnew 27th March, 1789. Duncan and Postlethwaite.” Now to make sense of this entry; it must be understood that Duncan and Postlethwaite, severally made oath to their own property. It was the fault of the clerk, that it does not appear so clearly as might be, by whom the oaths were taken. But we can make out his meaning, and that is enough.

3d and 4th. The 3d and 4th exceptions are, that in the paper filed in the clerk’s office, the sex of Rachael, and the occupation of John Duncan are omitted. This is very true, but they are both inserted in the record. There is not the least appearance of fraud or artifice in this transaction. The owner of a negro girl appears to have honestly intended to have her registered according to law, and the register itself is strict form. It in no manner contradicts the writing returned by the owner, but supplies its defects in two particulars. These defects were probably unknown when the writing was drawn, but being corrected in the register, the presumption is, that on their being pointed out to the owner he directed the clerk to insert them in the record before his oath was taken. This appears to me, to be the honesty and justice of the case. And the opinion of this court, in the case of Wilson v. Belinda, 3 Serg. fy Rawle, 399, warrants the construction whieh I have given to the register, connected with the written return of the owner. In that case, the word Esquire in the register, was connected with the return made by the owner, which was blank as to his occupation. It ought not to be presumed, that the clerk violated his duty which he would have done, if he had made a recorcFdifferent from that of John Duncan-, without his orders. The return of the owner and the record of the clerk may be considered as simultaneous acts and forming one transaction. These are all the exceptions which have been made to this register. I am of opinion that none of them have been supported, and therefore the judgment of the Court of Common Pleas should be reversed, and judgment entered in this court for the plaintiff in error.

Judgment affirmed.  