
    Fenwick’s Adm’r. vs. Forrest.
    Appeal from Saint Mary's county court. This is the Same case reported in 5 Harr, fy Johns. 414, and sent back to the county court for a new trial under á writ of prat cedendo.
    
    
      ¡U tor t vriti An execu tor is a competent witness to prove transactions between himself and the guarof the chilchen of the deceased, in an action against such, guardian by a third person
    In an action <if covenant by A aguase B, on BV. warranty to defend certain slaves sold by him to A, j>arol evidence is admissible to prove a paramount title in another person to such slaves
    Where no objection is taken to the sufficiency of evidence offered at the trial, the court will not in» stows the jury as to the sufficiency of such evidence to prove a particular fact
    
      
      ■ 1. At the new trial in the county court; the plaintiff, {now appellee,) read in evidence the articles of agreement, and the record from Baltimore county coiirt; which were given in evidence on the former trial, and then gave in evidence, that the negroes, ill the articles of agreement mentioned, were the descendants of a negro woman called Sail, once the property of Nicholas Sewalh That the said Sewall, sometime between 1800 and 1803, informed the witness, that after Sail’s intermarriage with David Sommei’ville, he agreed that she should attend her husband to Baltimore, and that if lie would pay him, after a certain, time which the deponent did not now recollect; a sum of money, the amount whereof the deponent does not recollect, that Sail should bci the property of her husband. That Sail left the said SewalPs house, and went to Baltimore with her husband* The plaintiff then gave evidence, that betwéenl809 and 1813, David' Sommerville, and Nicholas Sewall in his life time, had án interview* in which Som~ merville expressed his fears that his wife might be interfered’with as a slave and runaway; and that it was then understood between the said Sommerville and Sewall, that the contract, in relation to the said negro Woman, was affirmed, in consideration of having raised two children which he was either to send home, or had sent home, to the said Sewall, and a sum of money which was then paid. The defendant then gave in evidence, that the said negroes, in the agreement mentioned, were paid over by Raphael Neale and Lewis Ford, executors of Nicholas Sewall, to the defendant as guardian to the children of the said Nicholas Sewall. Whereupon the plaintiff offered to give evidence ■by Raphael Neale, one of the executors as aforesaid; to the competency of which witness to give evidence the defendant objected; but thé court, QStephen, Ch. J-3 would not sustain the said objection, but was of opinion that the said •witness was competent to give evidence, and did permit him to give evidence. The defendant excepted.
    2. The plaintiff then proved by Thomas Lynch, a witness sworn on his part, that between the first and the tenth of May 1817, six negroes were brought on board his vessel lying at Baltimore, and were brought by him to the bouse of the defendant, and delivered to liiip, and claimed' by htm as bis property; that lie afterwards heard the defendant say, that some of those negroes were in dispute in Jialtimore, and that the plaintiff was concerned, lie then gave in evidence, by Peter Gough, that the defendant informed him that he was present at a conversation between Gen. Winder and the plaintiff in August 1817, in which the plaintiff instructed Gen. Winder, who had appeared as counsel in the action of replevin before mentioned, that ha would not authorise him any longer to appear at his instance ■and request to defend the said writ. By consent of the parties, a record of the proceedings in the court of appeals-, tin the former appeal, was given in evidence.
    The jury then retired, and after some timé engaged, caused the following paper to be transmitted to the court. "‘The jury will thank the honourable court to instruct them which of the parties was legally bound to defend the suit of replevin of Somirlerville vs. Fenwick in the record, mentioned.” Whereupon the court, [Stephen, Ch. J. and Pla'ter, A. J.J by consent of counsel engaged in the cause, ordered the jury to the box, and gave them the following direction and instruction: That the plaintiff in this cause not being a -party to the action of replevin, in the said record mentioned, could not defend said 'action, and was not bound to do so. Thai Fenwick, the defendant in the said action of replevin, and the defendant in this cause, was not bound to defend the said action of replevin, unless he thought‘fit, but if he did not defend the Same, he would bé liable to the plaintiff in this action-, if the plaintiff prove a ■paramount title in the plaintiff in the said action of replevin, by parol or other evidence. The defendant excepted; and the verdict and judgment being against, him, he appealed to this court.
    The appellant having died after the appeal, his administrator appeared; The cause was argued before Buchanan, Ch. J. Earx®, Martin, and Archer, J. by
    
      Causin and F. S. Key, for the Appellant, and by
    
      Magruder and Taney, for the Appellee. ,
   Martin, J.

delivered the opinion of the court. This action was founded ón a covenant, by which the defendant warrants and defends the negroés mentioned in it, against all persons whatsoever, to be the property bf the plaintiff; and the breach assigned is, that they were the property of one Sommerville., who dispossessed the plaintiff of them, iff á former 'trial 'of this case in 1822; this court decided that the plaintiff might sustain his action, by proving á paramount title to the negróes in Sommerville, aiid that fact might be established", either by a recovery in a court of law, or by any other written or parol evidence. In the second trial the same testimony was offered to the jury. that had been submitted to them in the first, and also ad~ ' ditional parol evidence; intended to show a paramount title in Sommerville. No Objection whatever was made by the defendant tó the competency of this evidence, (except that given by R. Neule',) fabr was atiy prayer preferred to the court upon its sufficiency to sustain the action. Aftef the jury had retired, a difficulty occurred to' them; and by the consent of the parties they returned to deceive the instruction of the court. The question propounded by the ■jury was, who was bound to defend the replevin in Baltimore bounty court? .The court directed them, that neither the plaintiff nor defendant was bound by law to defend that suit; but that the plaintiff,was not confined to that testimony '¿lone; to sustain his action. If he bould prove a paramount title in Sommerville; by any other evidence; written of jwol; it was sufficient. Wé see no error iii this instruction; it is in substance, if not literally the law, as declared by this fcourt in the first trial in 1822.

It has been contended, that the evidence subihitted to the jury was not sufficient to prove a paramount title in Sommerville, and it was error in the court that they did not so instruct them. No objection was offered to its sufficiency at the trial. Had an application been made to the court upon that question, then, and then only, was it their duty to act upon it

The bill of exceptions appeared to be almost abandoned in the argument. The record certainly does not afford proof to prevent R. Neale from being a bompetént witness*

JUDGMENT ATiHtoiED.  