Walkup v. Pratt , 5 H. & J. 51 ( 1820 )

Martin, J.

delivered the opinion of the court.

The petitioner in this cause claims his freedom as being descended from a free woman named Violet.

In the trial of the canse below, several bills of exceptions were taken to the opinions given by the court, and whether those opinions are erroneous, it is now our duty to .determine. The first hill of exceptions having been abandoned by the counsel for the petitioner, it is unnecessary to be considered by this court. The opinion expressed in that exception is of course concurred in.

The court are of opinion, that the opinion of the court below, in the second bill of exceptions, was correct. The testimony offered being hearsay testimony, certainly was not competent to prove a sale from Sherwood to Feddeman; but pedigree may be proved by this kind of evidence, and pedigree can never be satisfactorily established, unless you are permitted to identify the ancestor. In cases of petitions for freedom, it would be nugatory to permit the petiti ■ oner to prove his descent through a long line of ancestry by hearsay evidence, if at the same timé you withheld the privilege of identifying the ancestor from whom the pedigree is attempted to be traced; such evidence therefore, as descriptive of the person, for the purpose of identifying the ancestor, is admissible. The opinion expressed in the second bill of exceptions is concurred in.

With respect to the third bill of exceptions, the court are of opinion there is no error. A witness in a petition cause for freedom, cannot be asked whether it is the general reputation of the neighbourhood, that the petitioner, or his or her maternal ancestors, were free negroes, and may be entitled to their freedom, either because of their descent from a free woman, or being manumitted by deed or will; and the general reputation relied on, may be founded upon a supposed claim arising under a will or deed,-which ought to be produced at the trial, and the construction of which would solely belong to the court. Upon this subject conflicting decisions have certainly been made. In the cases referred to in the reports of Harris 8,• MlHenry, such evidence was received by the court. It was, however, refused by the Supreme Court of the United States, in the case of Mima Queen, and child, vs. Hepburn, reported in 7th Cranch, 290; and in the case oí Henry Helmsley, and others, against Walls, decided by this court at June term 1817, such testimony was rejected upon the principles before stated, and the court have no reason to be dissatisfied with that decision. It has been contended for the petitioner, that if this testimony was improper upon general principles, that it Avas rendered admissible by the previous examination by the appellee. If the counsel for the appellee had offered improper evidence, the court, on application, Avould have rejected it, but the offering improper evidence by one of the litigant parties, never can justify the introduction of similar evidence by the other party; such doctrine would lead to endless confusion, and destroy all the established rules of evidence. The opinion in this exception is concurred in.

The court are of opinion, that thé county court erred in their opinion expressed in the fourth bill of exceptions. The will and inventory set forth in this exception were legal and competent evidence to prove, that Feddeman claimed title to Violet, and bequeathed her, and that she was appraised as part of his effects, and the court below ought to have declared such to have been their legal effect; instead of this, they generally directed the jury that the will and inventory were competent and admissible evidence, and ought to be weighed as such, to prove Violet was the slave of Philip Feddeman. .This general direction might have misled the jury, and was therefore erroneous. The same objection applies to the fifth bill of exceptions. The opinions expressed in those exceptions are dissented from.

The court concur in the opinion expressed in the sixth bill of exceptions. The reasons assigned for concurring in the opinion expressed in the third bill of exceptions, apply with equal force to this, nor can the court perceive the inconsistency, (as contended for by the counsel for the petitioner,) between the opinions of the court below in the second and sixth bills of exceptions. In the second bill of exceptions the testimony was offered to prove pedigree, and iilentify the ancestor, and for that purpose was competent and proper; in the sixth, it was offered to prove generally, that Violet’s children were free, and was subject to the objections before stated to the third exception. But it has been attempted to overrule the judgment in this exception, on the ground of interest in Mrs. Ruth, whose declarations were offered in evidence^and the position has been assumed, that wherever there is such an interest as would prevent the person from being a witness, the declarations of that person may be given in evidence by the opposite party. This position, however, cannot be sustained; for many instances may be adduced, where a person would be inadmissible as a witness, from interest, and yet his declarations- would not be evidence. The bail of the defendant in a suit cannot be a witness from his intex-est; yet it is believed it never was attempted to offer his declax-ations to sustain the action. So also of security for costs, and many other cases that are not necessary to be mentioned.') It must be obsex-ved in this case, that the defendant does not claim title to the petitioner from Mrs. Ruth; against her, and those claiming under her, the testimony might be proper; but although shé liad an interest iii part of Christopher Ruth’s estate, her déclarations could not be received in evidence to defeat the interest of those who claim the residue of that estate. It would be a dangerous doctrine to pennit one representative of a deceased person, however small his interest might be in the esta te, and who was no party to the suit, to defeat, by his declarations, the rights of all others claiming under the same estate. This, however, does not appear to be a new case; for in the notes to Peake on Evidence, page 24, several decisions are referred to on this point. It is there stated, that the confessions of one interested in the event of a suit, but not a party, can-hot be given in evidence. So in 1 Root, 502, the declarations of one co-obligor, not sued with the defendant, are not . evidence; and in Mass. Reports, 71, “an opinion said to have been expressed by one of the devisees, is not admissible to prove the testator was insane.”

The court are also of opinion, that the opinion of the court below, as expressed in the seventh bill of exceptions, ought to be concurred in. The declarations of Violet, the ancestor from whom the petitioner claims his freedom, was proper evidence to be submitted to the jury. The objection. arising under the act of 1717, ch. 15, relied on by the . counsel, cannot be sustained, the case is not within either the letter or spirit of that act, nor can it have any influence or operation upon it.

It is not necessary to consider the legal effect of the second objection raised by the counsel, in the argument of this exception, that the declarations of Violet ought not to be received in evidence, because the petitioner did not claim freedom from her, but paramount to her; because, from an examination of the record, the fact will be found to be otherwise. No attempt whatever was made by the petitioner to prove a title to his freedom, paramount to Violet; ■ on the contrary, he claims his freedom as being the son of Tansey, who was the daughter of Violet, a free Indian woman; and not a tittle of testimony was offered by the petitioner to trace his title to freedom to a more remote an- . cestor.

The eighth bill of exceptions having been abandoned by the counsel for the petitioner, the opinion expressed in that exception is concurred in.

judgment reversed, and procedendo awarded.