Davis, mother of the petitioners, was lineally descended, in the female line, from the said Mary; and it was admitted, that said Susan was, at the time of petitioning, free, and acting, in all respects, as a free woman; which evidence, by hearsay and general reputation, the court refused to admit, except so far as it was applicable to the fact of the petitioners' pedigree. 2d. That they having proved, that the petitioners are the children of Susan Davis, and that she is the same person named in a certain record in a cause wherein Susan Davis, and her daughter Ary, were petitioners against Caleb Swan, and recovered their freedom, the plaintiffs offered to read said record in evidence to the jury, as prima facie testimony that they are descendants in the female line from a free woman, who was born free, and are of free condition, connected with the fact that the defendant in this cause sold said Susan to Swan, the defendant in said record, which the court refused to suffer the petitioners to read to the jury as evidence in this cause. Lee, for the plaintiffs in error, and petitioners, referred to the opinion of the court (DUVAL, J., dissenting) in the case of Mima Queen and child v. Hepburn, February Term, 1813, as to the admissibility of hearsay evidence, in a similar case, remarking that, unless the court was disposed to review its decision, it must be taken for law, and he could not deny its authority. [DUVAL, J. The petitioners in that case were descended from a yellow woman, a native of South 1816. Davis V. Wood. 1816. Davis V. Wood. March 12th. America. In this case they are descended from a white woman.] Lee cited the opinion of the Virginia court of appeals, in the case of Pegram v. Isabel," as to the admissibility of the record, in which a record was admitted. Key, contrá, contended, that both grounds were irrevocably closed against the other party. The first certainly; and the second equally so as the evidence could not be admissible as prima facie testimony merely, but if admitted must be conclusive. The decisions in the state courts of Virginia are against the evidence of the parent's or other ancestor's freedom being conclusive in favour of a child. The case of Pegram v. Isabel is no authority here, for it was formerly considered and repudiated by this court in the decision alluded to. Lee and Law replied, and cited 2 Washington's Rep. 64., and Swift's Law of Evidence, 13. MARSHALL, Ch. J., delivered the opinion of the court, and stated, that, as to the first exception, the court had revised its opinion in the case of Mima Queen and child v. Hepburn, and confirmed it. As to the second exception, the record was not between the same partics. The rule is, that verdicts are evidence between parties and privies. The court docs a 2 Hen. & Murf. Rep. 193. not feel inclined to enlarge the exceptions to this general rule, and, therefore, the judgment of the court below is affirmed. 1816. The Samuel. (INSTANCE COURT.) The Samuel.-PIERCE and BEACH, Claimants. Prosecutions under the Non-Importation Laws are causes of admiralty and maritime jurisdiction, and the proceeding may be by libel in the admiralty. Technical nicety is not required in such proceedings; it is sufficient if the offence be described in the words of the law, and so set forth that, if the allegation be true, the case must be within the statute. That the deponent is a seaman on board a gun-boat in a certain harbour, and liable to be ordered to some other place, and not to be able to attend the court at the time of its sitting, is not a sufficient reason for taking his deposition de bene esse, under the judiciary act of 1789. Where the evidence is so contradictory and ambiguous as to render a decision difficult, the court will order further proof in a revenue or instance cause. APPEAL from the Circuit Court for the Rhode Island district. The brig Samuel sailed from St. Bartholomews, an island belonging to his majesty the king of Sweden, in the month of November, 1811, with a cargo consisting of rum, molasses, and some other articles, and arrived in Newport, Rhode Island, on the 8th of the following December, where the vessel and cargo were seized and libelled in the district court as being forfeited to the United States, under the act of congress prohibiting the importa 1816. The Samuel. tion of articles the growth, produce, or manufacture court. Daggett, for the claimants, made three points: 1st. The proceedings ought to have been at common law, and not in the admiralty. 2d. The information is insufficient. 3d. The testimony was insufficient to warrant a condemnation. 1. The act of the 1st of March, 1809, on which this libel is founded, directs, that the penalties and forfeitures "shall be sued for, prosecuted, and recovered, with the costs of suit, by action of debt, indictment, or information." The cases under the authority of which this proceeding was brought are the Vengeance, the Sally,' and the Betsey & Charlotte." But the act under which the Vengeance was prosecuted was the same with the Collection Law of the 2d of March, 1799, section 89, which prescribed a proceeding in the admiralty; the Sally was prosecuted under the Slave Trade Act of the 23d of March, 1794, which indicates no particular proceed & 3 Dall. 297. b 2 Cranch, 406. c 4 Cranch, 413. ing; whilst the Betsey & Charlotte was prosecuted 1816. under the act of Non-Intercourse with St. Domingo, The Samuel. of the 28th of February, 1806, wherein no method of recovering the penalties was specified. Supposing this to be a civil cause of admiralty and maritime jurisdiction, and that the district court has jurisdiction of it as such, the proceedings may still be by information, as in the exchequer. Where a statute prescribes a particular remedy, or particular remedies, no other can be pursued."-2. The statute is penal, and requires strictly accurate proceedings. The libel alleges, generally, that the cargo was laden on board in some foreign port. The cargo was stated to have belonged, in the alternative or disjunctive, to Pierce and Beach, or to one Stillman, or some other citizen, or consigned to one of said parties; and it was alleged that the offence was committed with "the knowledge of the owner or of the master."-3. The testimony of Oldham, a witness in the cause, was taken irregularly, and not used in the court below. The vessel and cargo were condemned upon the testimony of tasters only, against all the oral and documentary evidence. This testimony is novel; professional men and artists are credible witnesses in their own peculiar science or art; but this is matter of speculative opinion only, not of known art or certain science. The witnesses can never be made responsible for perjury. Their evidence is contradicted. The Attorney General, for the libellants. 1. The d 2 Burr. 803. Rex v. Robinson. e 1 Gallison, 85. The Bolina. |