
    Rusk vs. Sowerwine.
    Appeal from Baltimore County Court. Replevin for a slave. The appellant was the plaintiff below. General issue atid limitations were pleaded. ’
    1. The plaintiff offered evidence, that John Bailey, being in his life-time possessed of a negro woman named Hannah, and being indebted to Daniel Dulany, deceased, to secure the debt, on the 12th of April 1769 executed a mortgage to Dulany of said negro slave, and other property, which was duly acknowledged and recorded, and was offered in evidence. And to prove that the slave in controversy was a descendant from Hannah, the plaintiff offered as a witness to that fact, a black woman named Minia-, \ and ou the defendant’s objecting to her, as an incompetent. witness, the plaintiff offered evidence that the witness, and J the late Benjamin Bannaker, a black man of Baltimore county, were born of the same parents, and that the wit* ness and Bannaker were always reputed to be frfee; and that their mother was also reputed to be free, and to be descended of free parentage, and did actually enjoy free* dom. That Bannaker exercised in his life the rights of a free than in holding real property, in voting at elections, and being allowed and permitted to give evidence in courts of justice iii cases in which free white citizens were concerned; but it did not appear that at the times Bannaker was so admitted as a witiiess, ¿«¿objections were made tó his competency. The Court, (B’icholson, Ch. J.) deter* mined Minia to be An incorfipetent witness, the plain* tiff and defendant being free white Christian persons. The plaintiff excepted.
    
      A free hlaéíc ’ person is an nit'ompefent witness in a case where the parties arts free white elms-
    
      \ J A witness bavin# proved that lie received a power of attorney from a person lo act for her in all things relating1 to her estate, as well in collecting: debts as< in making' sale of propenj 9 fie. Held, that Unless the original pow» er of attorney was produeedsor proved to be lost, or that the pat tv luid issued a subpena to the witness with a duces tecum, no evidence couid be given of it.
    
      2. The plaintiff then proved, that Dulany, the mortgagee, above named, died in the year Í797, having by his last will and testament appointed his wife Rebecca his executrix, to whom letters testamentary were duly granted on the 25th of March 1797, copies of Which will, dated the 13th of March 1786, and the letters testamentary, were offered in evidence. The plaintiff then produced to the court miliam Cooke, esquire,- as a witness, and upon examining him, he proved to tire court, that shortly after the granting of letters testamentary to Rebecca Dulany, he received a power of attorney from tier, authorising him to act for her in all things relating to the said estate, as well in collecting the debts due to the testator, as in making éale of the real and personal estate belonging thereto; and that he received the power of attorney while he resided at Mnnapolis} that on his removal to Baltimore he supposed it might have been mislaid; for that having occasion to refer to it not long sincé, he had looked among his papers but could not find it; that he did not make very strict search for it, and believes that it is among his papers, because all his papers are kept under lock and key, and few persons have access to them except himself. The Court, (Nicholson, Ch. J.) determined, that unless the original power of attorney was produced, or proved to be lost, or that the plaintiff had issued a subpena to the Witness, with a duces tecum, the plaintiff could not give any evidence whatever of the power of attorney to the jury. Hie plaintiff excepted; and the verdict and judgment being against him, he appealed to this court.
    
      ‘flie cause was argued before Chase, Cli. J. Buchanan, ¡Gantt, and Earle, J, by
    Harper, for the Appellant;
    and by
    
      Boyd, for the Appellee,
   The Court

agreed with the court below in the opinions expressed in both of the bills of exceptions,

JUDGMENT AFFIRMED.,  