#### Free Jack v. Woodruff.

1 J- From Surry. J

'‘In an action by a man of colour, for his freedom, Defendant offered in evidence a record to shew Defendant to be a slave; from which, it appeared, that the proceedings of an Inferior Court on a habeas corpus, pronouncing him free, had been reversed, on the ground of want of jurisdiction in the Inferior Court: to rebut any unfavoura. ble inference from this record, the Plaintiff was permitted to give in evidence the declarations of one, not a party to the record, but who had possession, and claimed title to the Plaintiff, under the party to the record of reversal, at the time the declarations were made.”

This was an action of trespass vi et armis, alleging an assault and false imprisonment, brought by the Plaintiff, a man of colour, against the Defendant, to recover his freedom: the Defendant pleaded that Plaintiff was a slave; to which, there was a replication and issue.

The Plaintiff was the child of a woman of colour, named Jane Scott, who, in the year 1774 was in the possession of one Allen; Allen stated that she was free, and while in his possession she acted as a free-woman. In 1784, the Plaintiff was indented by Surry County Court, as a free boy, to one Meredith, who frequently said he was free,, but at length sold him to one Moses Woodruff; *107Woodruff afterwards sold him, and stated, that as he was reported to be a free boy, the purchaser must take him at his own risk. Allen, after making the declarations above stated, sold Jane Scott, to one Cresong, who sold her, to-getber with twelve of her children, including the Plaintiff, to William Terril Lewis, on the 22d. October, 1788; and Lewis carried or sent such of the children as he had ia his possession, (Jack not being ose qf.them) out of the state; assigning as a reason for so doing, his fear that if they remained he should lose them. The declarations of Lewis were objected to by Defendant, but the Court received them. Verdict for Plaintiff, new trial refused, judgment, and appeal to this Court.

On the trial below, the Defendant, to shew that Jane Scott was a slave, introduced a copy of a record from Salisbury Superior Court, from which it appeared that Jane Scott and her children had been released and set at liberty as free persons, on a writ of habeas corpus, returned to Surry County Court, and the judgment of Sur-ry County Court had been reversed by Salisbury Superior Court, on the ground of want of jurisdiction in the County Court.

Cresong, (who sold to Lewis,) was a party to this proceeding, and on the same day on which he sold to Lewis, executed a power of attorney to him, by virtue of which Lewis received the negroes from the Sheriff, on the process issuing upon the reversal of the judgment, and while the negroes were thus in his possession, he made the declarations which were given in evidence.

Gaston for appellant.

The testimony of Lewis’s declarations was inadmissible ; it was liable to the general objection of hearsay. — Rex v. Eriswall — (3 Term, R. 707.) Lord Kenyon’s opinion confirmed in, (1 East. 373, 200, 27, 54,63.-8 Ibid. 540.-Mima Queen v. Hepburn.— 7 Crunch, 290.:

There is great strictness in adhering to the rule against *108parol evidence. — Outrain v. More-woodi — (5 Term, 12.121,) and contests of this sort are. to be governed by the gene- ■ * > ral rules of evidence. — (7 Crunch ut supra.) Even if hearsay were admissib]e, it is never recei ved when the person who made the .declarations is living.-^r(3 Term,R. 715:— 1 East, 373. — 1.Phillips, 194, 5 — 3. Campb. 457 — Bull. JV". M. 113,294. — "2 Hawks, 406.) • ■ . ■

Tliey were here not admissible as the declarations of a party or privy.( — 1 Phillips, 78,.76, 82. — 1 Hawks, 442.)

Ruffin, contra.

The evidence of the .free condition of Jane Scott, was clearly proper. — Gober v. Gober — -(2 Hay. E. 170.) It is not necessary to prove the fact of her manumission. From the nature of the thing, evidence that she acted as a free-woman, was generally reputed to be such for a long time,, and that nobody claimed her as a slave, must be received. It comes within the reason of pedigree and boundary. , o

The hearsay; evidence .is of a different nature. The declarations of . particular .individuals is not on the same footing with general reputation. But the hearsay was proper here; the declarations of Meredith and Moses Wood-ruff and Mien,,wove admissible,, because the Defendant claimed through them, and likewise on the distinct ground that they were the declarations .of person in possession of the Plaintiff before Defendant, set up any claim. Upon these distinctions the case is different from that in 7 Crunch, 290 ; though is seems from that, to b.e settled in Maryland, that such hearsay is evidence.

Lewis’s declarations are not of themselves, evidence, but they become proper from the proof offered by the Defen-ant. He produced the record from Salisbury, to shew Allen’s sale to Cresong, and Cre,song’s .to Lewis coupled with the power of attorney. Upon that record, it appeared lhat Lewis claimed the Plaintiff as a child of Jane, and acknowledged upon tne iasf writ of res*itutiou. .Meredith’s possession to be his. This w as while the Plain*109tiff was held by Meredith, under whom Defendant says lie claimed. That record was offered to prove that Plaintiff was not free, by shewing a claim or title in Lewis, and that inference was properly rebutted by the decía-‘tions of Lewis that he had no title.

Hall, Judge.

The judgment and proceedings on this writ of error, in the Salisbury Superior Court, reversing the judgment of Surry County Court, by which Jane Scott and her children were restored to their liberty, was introduced by the Defendant to prove that the Plaintiff was.a slave, he being a son of Jane Scott.

Jn rendering judgment on the writ of error, the question, whether Jane Scott was a slave or not, ivas not examined; the ground of reversal of the County Court of Surry was, that the County Court, had not jurisdiction in such cases, but the Defendant relied upon it as evidence of his title.

It appears that Abraham Cresong, who was party to that proceeding, did, on the 22d day of October, 1788, convey by deed, to William Terrill Lewis, the woman Jane Scott, and her children, and on the same day, executed a power of attorney to said Lew'is, under which lie received, from the Sheriff, Jane Scott and the Plaintiff, in consequence of a process issued for that purpose upon the reversal of the judgment of Surry County-Court. It was whilst Lewis was possessed of Jane Scott, and some of her children, perhaps not the Plaintiff, and claimed title to them, that he made the declaration which is the subject of the present question submitted to this Court.

I will not say what I think ought to be the judgment of this Court, provided that record had not been offered in evidence by the Defendant, and provided it had appeared that William Terrill Lewis w'as dead; but I must say, that as Lewis claimed Jane Scott and her children, under Cresong, who had been party to the *110record when he made the declaration, that it was proper to give that declaration in evidence, to counteract any conclusion which might be drawn by the Jury, from the record, unfavourable to the Plaintiff.

It will be seen that the conveyance had been made to Lewis, by Cresong, at the time when judgment was given on the writ of error, and if not the nominal, he was the real party to that proceeding; and as the Defendant wished to derive a benefit from the record, it was proper, under those circumstances, that the declarations of Lewis should accompany it, when offered in evidence. I, therefore, think the rule for a new trial should be discharged.

And in this opinion the rest of the Court concurred.