Pegram

V.

Isabell.

MARCH, 1808. tendered a bill of exceptions in the following words: "Be "it remembered, that, on the trial of this cause, the plain"tiff having proven by general reputation her descent "from a woman named Nanny, offered as evidence to 66 prove, that the said Nanny was free, (by reason of her "being descended in the maternal line, from an In lian an"cestor, imported into this state since the year 1705,) a "record in a suit between Nanny and others, and Stephen Mayes, in these words and figures, to wit:" [The record is set out at large, from which it appears that the plaintiffs in that suit obtained a judgment by default, and that a writ of inquiry was executed.] "And the plaintiff, also offered

in addition to said record, (in order to prove the same "fact, in regard to the freedom of Nanny,) the testimony "of G. K. Taylor, who proved that, on the trial of the writ "of inquiry, in said suit, between Nanny and others, and "Stephen Mayes, it was deposed by a witness, whose name "the said Taylor did not particularly recollect, but whom he "believes to have been one Francis Coleman, a very old man, "who he believes, but does not positively know, is since dead, "that the said Nanny was descended according to gene"ral reputation, in the maternal line, from an Indian an16 cestor, who was imported into this state, since the year "1705; the said Taylor, further stating that he had endea"voured to no purpose, to find a living witness who might

66

prove the same point, in the present cause: whereupon the "defendant by counsel, objected to the introduction of the "said record and of the said evidence of said Taylor, because the defendant in the present case, is not proven to "hold or claim under, or in any other manner, to be privy "to the said Mayes, the defendant in the said record men“tioned; and because there never was any issue made up "in the said suit, between the said Nanny and others, and "the said Mayes, whereby the title of the plaintiffs to free"dom was brought into question; the said suit being tried

on a writ of inquiry: but the Court overruled the said ob"jections, and admitted the said record and the evidence of "the said Taylor, to go to the Jury, as evidence to prove “that the said Nanny was free, as being descended, in the

Pegram

V

Isabell.

maternal line, from an Indian ancestor imported into this MARCH,1808. "state since the year 1705; which evidence should be li"able, however, to be rebutted by other opposing evidence "and circumstances." To which opinion the defendant by her counsel excepted, and the exceptions were signed and sealed by the Court. The Jury found a verdict, that the plaintiff was a free woman, and not a slave; judgment was entered thereupon, and the defendant appealed to this Court.

This cause, was argued on the 16th of November, 1807, by Hay for the appellant, and by the Attorney-General for the appellee. The Court took time, until this term, to consider of their judgment.

Hay, for the appellant, objected, 1st. To the admission of the record in the case of Nanny, and others v. Mayes, as evidence in the suit of Isabell v. Pegram; because, between Mayes, the defendant in the first cause, and Pegram the defendant in this, there was no privity or connexion. One of the first principles of law is, that a verdict between A and B cannot be given in evidence against C. The reason is, that a party shall not be bound by a verdict, who had no opportunity of cross-examining the witnesses. The principle applies with peculiar force, in the present case, because no defence was made by Mayes. On this point, which he considered as decisive of the cause, he did not think it necessary to adduce authorities. Such a practice was never adopted before, and would be a prostration of every idea of justice.

2dly. Though he admitted, that hearsay testimony, was properly received to prove the descent of Isabell from Nanny, yet he objected to the introduction of G. K. Taylar's evidence; both because there was no positive proof of Coleman's death, and because it was admitted as evidence to prove the fact that NANNY was descended from an INDIAN. A pedigree may be proved by general reputation, but not the particular quality or character of the parties.

Pegram

V.

Isabell.

MARCH,1808. The Attorney-General, for the appellee. The object of introducing the record, was to prove that Nanny, the mo ther of Isabell, was free, in consequence of having been de scended from a female Indian ancestor brought into this country since 1705. This record was offered not as conclusive, but only as persuasive evidence; and therefore the opinion of the Court in admitting it, is not in hostility with (a) 2 Wash. the case of Shelton v. Barbour,(a) which amounts to nothing more than that a verdict cannot be given in evidence, as conclusive, except between parties and privies. The record was the highest evidence, of that particular fact, that Nanny had recovered her freedom, and, if there had been a suggestion of any fraud in obtaining the verdict, it should (b) 1 Wash. have been shewn.(b)

64.

306. Lee, ex'r of Daniel, v. Cooke.

The objections that the verdict was not between parties or privies, and that there was no opportunity of cross-examining the witnesses, only apply to those cases, where a a verdict was introduced as conclusive evidence: but, in this case, the record was offered as circumstantial or persuasive evidence only. It was only offered to prove the fact that Nanny was free; from which fact such inferences might be drawn as the law would permit. Several au(c) Peake's thorities recognize this distinction.(c) This is like the common case of an action upon the warranty of a slave or 78. in the notes. 5 Burr. other personal property. The plaintiff, as evidence of the Grimes, Bull. recovery by a third person, introduces the record, containN. P. 233. ing the proceedings in the former suit, In that case, as directly point. 5 Bac. in this, it is competent to the defendant to say, that the Abr. Gwil. ed. verdict was obtained by collusion; but the verdict is al

L.E.40. Ibid.

2598. Rex v.

in

429. cites Co.

Lit. 352 a. b. ways considered evidence of the fact of a recovery. (d) 1 Hen & In Hudgins v. Wrights(d) one piece of evidence reliMun. p. 134. ed on by the plaintiff below was, that John the brother of Hannah, daughter to the female ancestor, under whom the plaintiff claimed, had brought a suit for his freedom.No particular decision was made on that point, but it was mentioned by one of the Judges(e) as an auxiliary circum

(e) Judge ROANE, ibid. P: 142.

stance.

Pegram

V.

Isabell.

That the verdict in the case of Nanny and others against MARCH,1808. Mayes, was rendered on a writ of inquiry, makes no difference in point of reason, when it is considered for what object it was introduced. The legitimation of Nanny, however, appears as fully from it, as if there had been the most formal pleadings; and the inference is, that Mayes knew he had no right to detain her in slavery, and therefore thought a defence unnecessary. But Mr. Taylor expressly proves that testimony was given on the trial as to Nanny's descent from a female Indian imported since 1705. Nor does it make any difference, in point of law, whether the verdict was rendered upon an issue or writ of inquiry.(a)

(a) Peake's

L. Ev. 34.

It is admitted, by Mr. Hay, that hearsay evidence is sufficient to prove a pedigree, but not the particular quality or character of the parties. This record was not introduced as an independent piece of testimony, but as connected with, and explained by Mr. Taylor's. His evidence, as to title, was nothing more than what ancient people, who were dead, had said about the ancestor of Nanny. But in Jenkins v Tom and others,(b) the Court (b) 1 Warb. affirmed the principle that hearsay evidence was admissible as to the quality or character of the parties. [On the doctrine of hearsay evidence, the Attorney-General referred to Peake's Law of Evidence, p. 11. and to the same author, p. 50. to shew that what a witness, who was since dead, had swore to at a former trial, might be given in evidence.]

It may be said that it is not proved the witness was dead. Mr. Taylor says that he believes those facts were proved by the testimony of Francis Coleman, who, he believes, is since dead. This goes as far as was necessary, to admit the evidence. The witness was a very old man, and this circumstance fortifies the belief of Mr. Taylor, that he was dead.

123.

Hay, in reply, said that his first objection was founded on the general principle, that a verdict was only evidence between parties and privies. This rule is laid down in Peake's Law of Evidence, (c) and the reason there given can- (c) Page 38.

V.

Isabell.

MARCH,1808. not be controverted. And yet it is contended that the ver Pegram dict, or rather the inquest, between Nanny and Mayes, was evidence in the case of Isabell and Pegram. Though Nanny might have been entitled to her freedom, it did not necessarily follow, that Isabell was entitled to her's; for Nanny's right to freedom might have accrued after Isabell was born.

But even though a verdict on an issue may in certain cases be evidence, yet it does not follow that an inquest may; because, where a verdict is rendered on an issue, the matter of fact is found by a Jury, but, on a writ of inquiry, they are bound to find for the plaintiff.

If it be inferred, from the circumstance of Mayes's making no defence, that it was a concession on his part that Nanny was entitled to her freedom; still it was only binding on him and those claiming under him; but could not affect others. This is an important question. For, if it be once established that the confession of one man may bind others, a door will be opened to fraud, and emancipation, even in defiance of the law.

But it is said, the record was introduced only as circumstantial evidence. When it got into Court, however, it was acted on as conclusive evidence: the defendant had a record exhibited against her of which she had never heard before; and, because she was not prepared to prove that the verdict was fraudulently obtained, it was permitted to operate against her.

In support of this case, that of Shelton v. Barbour, has been relied on. That case only proves that between parties and privies, the verdict is conclusive. This doctrine is not denied; and is so laid down in all the books. But because the Court said, the verdict was conclusive evidence, between parties and privies, it was inferred that it is circumstantial evidence between others. A more correct inference would be, that it is no evidence at all. In that case too, the verdict being against the mother after a full hearing of the cause, it might be given in evidence by any person to