
    Quimby vs. Wroth.
    Appeal from Kent County Court. Action of replevin for a negro slave named Joseph. The writ issued on the lUh of March 1809. The defendant, (now appellant,) pleaded, 1. Property in himself. 2. Non cepit infra tres anuos; and .3. Jicfio non accrevil infra tres annos. Gene • ral replication and issue joined to the first plea. To the second plea, the plaintiff, (the appellee,) replied, that the defendant had for three years held the possession of the tiegro man, under the pretence that the right of property was not in the plaintiff, but that he acknowledged himself content that the plaintiff should recover the possession of the negro, provided hehadthe right and the property in him. To the third plea he replied, that the cause of action did accrue within three years, to wit, on the 20th of March 1806. Rejoinder to the second replication, that he the defendant: held the negro for more than three years in his own right and property, and hath never, at any time with in three, years, acknowledged himself content that the plaintiff should recover possession. ¡Surrejoinder, protesting that the facts stated in the replication, are true; and joins issue that the defendant hath within three years acknowledged himself content, &c. Verdict, 1. That at the time of taking, Ac. the property of the negro was in the plaintiff. 2. That the defendant “did not hold possession of' the negro uuder the pretence that the right and property was not in the plaintiff, but hath acknowledged himself content that the plaintiff should recover possession of the negro, provided the plaintiff should prove the right and property of the negro tobe m him the plaintiff.” 3. That the cause of action did accrue within three years.
    in Replevin fot atiegro,where the act of limitations was i\ lied on, the plaintiff, in order to prorent the operation of that act, proved by a * witness that the defendant,' aft el* the institution of the «nit, said “that if the negro did 'not belong to hioi, he did not want •him, and no pro» perty he had was his, and that no law suit was necessary.” This competency of the witness was objected to, and evidence was given that he had sold the. negro of J W, under whom the defendant claimed him by a bid of sale dated in 1792, with a geneial warranty; mu it va {¿roved that (he mines* wtsm that. 5 ear thseh» rg<sd under an insolvent law— lleld% that the witness was eotnpt tent, and the evidence was pcnnilted to be given to the jiuj*
    1. At the triai the plaintiff produced John Willis as a wiiuuss, and offered to prove by him that, the negro man named Joseph, mentioned in the declaration, was held by a certain James Wroth, who by his last will and testament, dated the 7th of October 1784, bequeathed the same negro to the plaintiff, to remain in his mother’s care, and for his use, until he arrived at age; which will he read in evidence. Ami that Ilia witness afterwards intermarried wi,h Jinn Wroth, the wife oí Janies Wroth, the testator, and at that time the said negro was in the possession of the said Jinn Wroth, the wife of the said testator, and the mother of the plain» tiff. He further offered to prove by the same witness, whom he showed had been discharged bv the insolvent law m the year 1792, that he had heard the defendant say, . , , ■ since the original writ nnpetrated in this cause, “that it negro Joseph did not belong to him he did not want him, and do property he had was his, and that no law suit was necessary.’* The defendant then objected to the competency of the said witness, and produced his deed to James Wroth, junior; under whom the defendant claimsj dated the ÍOth of August 1792, whereby, in consideration of -Cl 20, Willis the witness granted; &c. unto J¡ Wroth, all his goods and chattels, &c. and amongst others the said negro Joseph, &c. With a general warranty. This deed of sale was duly acknowledged and recorded. But the court, \Worrell, A.J.3 was of opinion, that the witness was competeftt, and that the testimony Was proper. The defendant Oxceptech
    2; The plaintiff then offered to prove by John Willis, á witness sworn, that he had heard the defendant in August 1809 say, that if ftegro Joe, the negro named in the declaration, was not his, he had no property, and that he did not want him, and that no law suit was necessary. To this testimony the defendant objected} but the court permitted the same to be given to the jury. The defendant excepted'} and the verdict and judgment being against Him, he ap - pealed to this court.
    The cause was argúed before Polk, Nicholson, and Johnson, J.
    
      Carmichael, for the Appellant,
    referred to Galligher vs. Hollingsworth, 3 Harr. & M‘Hen. 122; and Peake's Evid. 300, 307.
    
      Chambers, for the Appellee,
    cited Morris's Lessee vs. Vanderen, 1 Dall. Rep. 65. Bent vs. Baker, 3 T. R. 27. Walton vs. Shelley, 1 T. R. 298, 301. Jordaine vs. Lashbrooke, 7 T. R. 601. Oxenden vs. Penerice, 2 Salk. 691; and 1 Selw. N. P. 321.
   The Court

concurred in opinion with the Court below on both the bills of exceptions, and

Judgment affirmed.  