
    Alexander against Stokely.
    In Error. •
    September.
    ERROR to the Court of Common Pleas of West- , 7 ' 71lOTCldTld county..
    Ajudgment in a homine replegiando b) the mother, in which she is decided to conclusive evidenee against the defendant in such suit,. who subsequently brings a homine replegiando against a third person, in which she claims the daughter of such former plaiutiff as a servant till twenty-eight, such daughter being born after the judgment, and her freedom or obligation of service depending on the freedom or slavery of her mother.
    
      t This was a homine replegiando, brought by Susannah Stokely against John B. Alexander, to try the right of the plaintiff below, defendant in error, to the services of a negro girl ' ° o named Nance. Nance was- the daughter of Milley-, a coloured woman. If the mother were the duly registered slave of Mrs. Stokely, then Nance being registered, was her servant till twentyTeight, by the laws of the State; but if she -were not,'then-she was Tree. ’ The. defendant on the trial, offered in evidence, the record of a judgment of the Court of Common Pleas of Westmoreland county, in an action of ' homine replegiando, brought against Susannah Stokely, by Milley, the mother of Nance, in which Mrs .Stokely pleaded that she held and kept Milley as a slave duly registered. On this plea issue was joined. There was a special case stated for the opinion of the Courtj in which the ground of' the plaintiffs right to hold Milley. as a slave was set out, and her claim was founded on. the registry stated in the record, and on that aloné, and on this case the Court gave judgment for ..the plaintiff 'Milley, which judgment'remained unreversed and ip full force. This record was rejected by the Court below, and a'billof eiceptions taken. The Court below gave judgment for the plaintiff, on a. demurrer to the evidence taken by the defendant below. ’ , .• .
    
      Forward, for the plaintiff in error,
    cited 13 Johns. 141. Phill. Ev. 234. 2 Wash. Rep. 64. 2 Hen. ÍÚ? Munf. 193,. Co.t Lift. 332. -7 Cranch. 2 71. Act of Assembly, 13th April, 1782. - - •
    
      Foster,
    
    3 Teates. 259. 3 Serg Rawle, 396, 3 Binn. 161'. 1 Sm. Laws, 497.
   The opinion of the Court was delivered by

Duncan J.

rNatice was born after her mother-became'a free woman, on account of the defect in the registry, as was decided in the action brought by her mother against Susan-nah Stokely ; and1 the question is, whether Susannah Stokely is estopped by this judgment, from now averring contrary to the title thus found that Milley was her slave. I do not propose the question whether it is evidence to go to the jury, oh the issue on trial, but on the ground of its conclusiveness. A recovery in any suit upon issue joined, on matter of title, is conclusive on the subject matter of title. An allegation on record, upon which issue has been once taken and found, is between the parties taking it,' and their privies, conclusive according to the' finding thereof, so as to estop the parties respectively,' from again litigating that fact, once so tried and found. Now nothing can be clearer than this, that the children are privies in blood to their mother ; and so far as regards the state of the mother, whether a slave or free at the time of their birth, are privies in estate. It is unnecessary to decide, whether children would be bound by judgment against their mother on. a question of her freedom j yet even to support that doctrine, there is very high authority. In the Court of Appeals in Virginia, it'was decided, that in an action for freedom, a verdict finding the mother to be free or a slave, is conclusive evidence between a child of the plaintiff, and one claiming under the defendant .in that suit. Shelton v. Barbour, 2 Wash. 64, and Pegram v. Isabell, 2 Hen. & Munf. 193, where in the case-of a child, the record against the mother was produced, and the Court decided, it was upon the, child to shew, that he or the mother was manumitted since the verdict.

But in a case of a child claiming to be free, because the mother in a suit wherein the same person was a party claiming the services of both, was ádjudgedybee, on an allegation appearing on the record precisely found, that the mother was free when the child was born, I cah entertain.no doubt '; butj on principles of reason and authority, the judgment is conclusive as to the freedom of the child. The first step the defendant must take, would be to prove that the mother was a slave ; partus sequitur ventrem. ■ The child is born free according to the condition of the mother, and if in an action wherein the person-claiming the service of the child, is one party, and the mother is the other party, she has. been declared free by the judgment of a Court of competent jurisdiction, that matter cannot be again -called in question. The child with the record in his hand, cannot be held in slavery or servitude. There is an énd. of the question as to the mother.' The condition of the mother is changed, and it would shake our'understandings,'if the law were so, that-a child whose mother by la.w had been free before her birth, should notwithstanding be born a servant or slave. In all personal actions concerning goods, chattels, and debts, a recovery in one action, is a bar in another, and there is an end of the controversy. Coke’s preface to his eighth report, Thé judgment which is thefru.it of the action, concludes the existence of the right. If this child had been born after the judgment in. favour of the mother, it could not be pretended, that the plaintiff below, could retain her as a servant; yet tlm judgment has relation to the condition of the mother when the child was • born, which has been conclusively settled to be that of.a free woman.

The judgment is final for its own proper-use and object, and is conclusivé on its subject by way of bar to future liti- . gation, for the thing thereby decided. The judgment.'was on the very fight to hold the mother in slavery. That judgment was that she ceased to be a slave long before the birth of this child. That was the immediate right in demand; the whole right of . the plaintiff in this action hung on that inquiry. She claimed by and through the mother. Freedom or slavery of the mother was the substantial matter in issue in .both suits.. A case in the Tear Book, 13 Edi 4. 2. 3. 4. comes up to this. It was trespass for taking á villein. The ancestor of the villein had answered in a former suit in which it had been alleged, that he was a villein regardant, that he was free, and not a villein in manner and form as alleged, and it was so found. The son of the supposed, villein relied on this finding as an estoppel, and it was held so. In Ingleton v. Burges, Comb. 166, Lord Holt cites' this case, and says, it ,was perhaps grounded oh the reason of the favour of liberty, but it would appear, that it was expressly decided upon the identity of the matter in' issue.

The Court erred in not • admitting this evidence; it was not only relevant, but conclusive. Strictly speaking, as the former judgment was not pleaded, it might not be considered a legal estoppel, yet'it was conclusive in evidence on the rights of these parties. It was not possible, for the plaintiff in this action to affect its conclusiveness by shewing that Milley had become free subsequent to the birth of the. child, because the matter put in. issue, and the title set up by her, was her registry as a slave in 1780. That issue being found against Mrs. Stokely, it passed in rem judicatqm, that she became free in 1780; then there could be no foundation for the claim to Nance, Milley’s child, born of a free mother as a servant until twenty-eight.

This has rendered it unnecessary for the Court to give any opinion, on the testimony demurred to ; the Court could render no judgment on that.

, Judgment reversed.  