
    Shelton v. Barbour.
    April Term, 1795.
    Verdict — When Conclusive Evidence. — In au action for freedom, a former verdict which found the mother of the plaintiff to he free, or a slave, is conclusive evidence, the defendant in this action claiming under the defendant in the former suit.
    This was an appeal from the District Court of Charlottesville. It was an action of'trespass, assault and battery & false imprisonment, brought by the appellee, who had been held by the appellant as a slave, in order to try his right to freedom. The pleadings having put this point in issue, the appellant the master, offered in evidence a transcript of a verdict and judgment in the former General Court, between the mother of the appellee and Robert Harris, under whom the appellant claims, by which verdict it was found, “that the plaintiff was the slave ot the defendant.” The appellant’s counsel offered this as conclusive evidence of his title, but the court being divided in opinion sent the verdict to the jury as circumstantial evidence only, and in no other manner. To this opinion the appellant excepted and the verdict being •against him, he appealed.
    Marshall for the appellant. There is no rule better established than this, that a verdict may be given in evidence between the same parties, or between those, who are privies to the verdict, and where the matter in issue in both suits were the same. Bull. Ni. Pri. 232, 233. In this case, both the appellant and the appellee were privies to the verdict found in the general court, the former, claiming in right •of his mother, and the latter, claiming such title as the defendant in the former suit could convey to him. Freedom or slavery was the substantial matter in issue in both suits. This point was once decided in the former ^General Court, and the principal was there laid down, that a verdict finding the mother to be free, should be conclusive evidence of the freedom of the child, in an action brought by the child, against one claiming under the defendant in the first suit.
    Ronold for the appellee. If the court had decided that the verdict was not conclusive evidence, they would have done right, 1st, because the whole record in the former suit was not produced, but only the verdict and judgment, from which it could not certainly appear to the court, what was the essential matter in dispute upon the former trial; and 2dly, because from the very nature and reason of the thing, it would have been unjust to effect the appellee’s title by verdict, to which he was not a party. For he might have had it in his power to produce better evidence of his right to freedom than his mother could, which indeed it appears he did, from the verdict being in his favor. Upon a trial touching a right of common, it is clear that a verdict against one commoner, would not be evidence in an action brought against another, for the second may have some other, or better title than the former. So in this case, the mother might have been a slave, and yet the son might be free, for he might have been liberated, and the record not stating the whole evidence, it does not appear that the son relied upon the same title that his mother did.
    But I contend, that the court did not decide whether the verdict should be considered as conclusive evidence or not. The judges were divided upon that point, and therefore the court has not erred, even if the verdict were conclusive evidence.
    Copland on the same side. In addition to the arguments used by Mr. Ronold, I would ask whether a verdict ought not to be as conclusive against the master as against the slave?
    Warden on the same side, insisted that the case of Tom and Jenkins decided in this court (See ante Vol. 1, P. 123) if looked into, would be found in a great measure to decide this question.
    Washington in reply. The principle of law laid down by Mr. Marshall has not been controverted otherwise, than as being an unreasonable rule. I shall therefore confine my observations to the objections made to the rule upon that ground. The reason, why persons who were parties to the former trial, or who claim under them, are bound by a verdict rendered upon the same question, is, that there majy be an end put to law suits; for it would be inconvenient if men’s titles once decided, should *be always at sea, and subject to the hazard of many trials, when loss of testimony or other casualties might happen.
    But it is objected, 1st, that the son might nave it in his power to produce better evidence than the mother. This would apply with equal force in all other actions where the plaintiff or defendant had miscarried in a former suit, and would furnish an apology for endless litigation upon the same subject, however frequently it may have been decided.
    2d. The son might have had a title which his mother had not. If the fact were so, then the case would have been out of the rule contended for, which is, that a verdict can be given in evidence only between such as are parties or privies to it, and where the trial was had upon the same point; but if the plaintiff had another title, whj' did he not shew it? He may yet shew it, tho’ the judgment should be reversed.
    Lastly, it is said that the court did not decide, that the verdict was not conclusive evidence. The record itself will best explain the decision of the court. It states, that “the court suffered the said record of a trial to go to the jury as circumstantial testimony only, and in no other manner,” which was certainly deciding, that the jury were not to consider the verdict as conclitsive, but only as circumstantial evidence : and to this opinion, the exception was taken.
    Campbell for the appellee. The case cited from Buller 232, does not support the rule of law contended for. It declares that the verdict may be given in evidence but does not assert that it is to be considered as conclusive. The reasoning of the author proves, that such was not his meaning, for he says “the verdict in such a case is a very persuading evidence.” In this case the verdict was given in evidence, and therefore the very thing was done which the authority requires.
    The record not stating that the appellee’s title was the same with his mother’s, this court will not presume it, for the purpose of rendering the judgment below erroneous. It is true, that the question in both suits was the same, but it no more follows that the title was the same, than that every question which respects the same parcel of land must be the same.
    Since the law, as well as the best feelings of the human heart favor liberty, the rule contended for ought rather to be moderated than extended in the present case.
    
      
      Judgments — Res Adjudicata. — The principal case is cited in C. & O. R. R. Co. v. Rison, 99 Va. 32, 37 S. E. Rep. 324, for the proposition that a judgment or decree necessarily affirming the existence of any fact is conclusive upon the parties or their privies, whenever the existence of that fact is again in issue between them, not only when the subject-matter is the same, but when the point comes incidentally in question in relation to a different matter, in the same or any other court, except on appeal, writ of error, or other proceeding provided for its revision.
      In Pegram v. Isabell, 2 Hen. & M. 204, the court, citing the principal case, said: "That although liberty is to be favored, the court cannot, on that or any other favored subject, infringe the settled rules of law. In that case,” meaning the principal case, “it was held, in conformity to this principle, that a verdict between parties and privies, finding the mother of the plaintiff to be a slave, was conclusive evidence against him, as much as a verdict finding her to be free would have operated in his favour.. This decision" (i. e. the decision in the principal case), "therefore, shuts out the pretence that we can, in this case, take a greater latitude in relation to the rules of evidence, than in any other.”
      In this connection, the principal case is cited with approval in Preston v. Harvey, 2 Hen. & M. 64, 67; Pegram v. Isabell, 2 Hen. & M. 210; Gregory v. Baugh, 4 Rand. 615.
      See monographic note on “Judgments” appended to Smith v Charlton, 7 Gratt. 425.
      Slaves — Issue—Construction of Statute. — As to the effect of the statute, declaring that all children shall be bond or free according to the condition of their mothers, see the principal case cited in Pulton v. Shaw, 4 Rand. 599.
      Same — Construction of Statute. — And as to the effect of the repealing clause of the act of 1705, concerning servants and slaves, see the principal case cited in Gregory v. Baugh, 2 Leigh 685.
      In Gregory v. Baugh, 2 Leigh 687, it was said that. Jenkins v. Tom, 1 Wash. 123, was approved in the principal case.
    
   *The PRESIDENT

delivered the opinion of the court.

To discharge this case of Tom & Jenkins cited at the bar, let it be observed, that the only question there was, whether the court did right in admitting the hearsay evidence of old people then dead, to prove that the plaintiff’s ancestors were Indians; this court approved the opinion of the District Court. In that record there is a paper which seems to want a name, & appears merely to contain the arguments of one of the counsel, and the opinion of one of the judges upon a point which this court has since sanctioned; to wit, that there was a time when the law of this country authorised the making slaves of Indians taking in war within the then colony; that under that law, many Indians were made slaves, and their descendants have continued in bondage. But that some time after, that law was repealed, from which time, no American Indian could be made a slave. But this court took no notice of that paper, as it did not come up as an exception to the opinion of the court', but was permitted (at the importunity of the counsel) to be made part of the record.

In that case too, this court thought that the deposition of Mr. Belfield, to prove that a verdict had been given in another suit between Richard Vena and William Hammond was inadmissible, since the record itself ought to have been produced.

It has been contended in this case that libert3r is to be favored. This is true, but the court cannot on that, or on any favored subject infringe the settled rules of law.

It was also objected, that the plaintiff might have had it in his power to produce better testimony than his mother aid. In the first place, it is not presumable that he knew more than his mother did respect-' ing her title to freedom, and in the next, the law indisputably supports the rule contended tor, that between parties and privies to the former suit, the verdict is conclusive evidence. The reason of the rule had additional strength in this case; for since the a.ct of Assembly declaring that children shall be bond or free according to the condition of the mother, the verdict, which found the mother a slave, was conclusive evidence to prove that the sop was so. The case mentioned by the appellant’s counsel in the General Court was like the present.

It was argued, that the appellee might have been manumitted. If so, he certainly ought not to be precluded from proving it, nor will the opinion which this court will give preclude him. The judgment must be reversed for error in the court’s not admitting the record as conclusive evidence, to prove the plaintiff a slave. The cause is to be sent back for a new trial *with a direction to this effect, unless the plaintiff can shew that he or his mother were manumitted subsequent to the first verdict.  