the commencement of the suit for title, and her capacity to sue having been established; the next question is, how much can she recover? From the 15th of June, 1825, to the — day of April, 1827, she is entitled to recover at the rate of $20 per annum.

5.

MATILDA V. CRENSHAW. March T. 1833. 4 Yerger's Tenn.
Rep. 299.

Trespass.

Matilda, the plaintiff, having, in a former suit against the defendant, established her right to freedom, brought this action to recover wages during the pendency of the original suit, and up to final judgment; the defendant having continued to hold her as his

slave.

Money

which the plaint iff has necessarily expended in

establishing his

freedom,

ney's fees,

Per Cur. Catron, Ch. J. Matilda spent fifty dollars in prose- claim to cuting her suit for freedom. It is admitted the expense was ne- as attorcessary. Can this be recovered in the present action? Nothing &c., is reis better settled than that things may be laid in aggravation of coverable. damages, and that the whole damage sustained by the tort, may be recovered in actions of trespass vi et armis, or trespass quare clausum fregit. Bull. N. P., 21. 89.; Adam's 332, 3. dollars will be added to the wages.

(D.) OF THE JUDGMENT.

1.

The fifty

ALEXANDER V. STOKELY. Sept. T. 1821. 7 Serg. & Rawle's

Rep. 299. S. P. SHELTON V. BARBOUR, 2 Wash. Rep. 64.;
PEGRAM V. ISABELL, 2 Hen. & Munf. 193.

ment of

the mother

Homine replegiando, brought by Susannah Stokely against Alex- A judgander, to try the right of the plaintiff to the services of a negro freedom girl called Nance. The record of a judgment of the court, in a in favor of case where Milley, the mother of Nance, was complainant, and is concluMrs. Stokely defendant, and where the court found Milley a free sive eviperson, and not a slave, was offered in evidence. The evidence gainst the was objected to, and rejected by the court.

dence a

defendant,

or one

a child

mother

Per Cur. Nance was born after her mother became a free claiming woman; and the question is, whether Susannah Stokely is estop- of the ped by this judgment from now averring contrary to the title thus born after the judgfound that Milley was her slave. I do not propose the question, ment.

whether it is evidence to go to the jury, on the issue on trial, but on the ground of its conclusiveness. A recovery in any suit upon issue joined, on matter of title, is conclusive on the subject matter of title. An allegation on record, upon which issue has been once taken and found, is, between the parties taking it and their privies, conclusive according to the finding thereof, so as to estop the parties, respectively, from again litigating that fact once so tried and found. Now, nothing can be clearer than this, that the children are privies in blood to their mother; and so far as it regards the state of the mother, whether a slave or free at the time of their birth, are privies in estate. It is unnecessary to decide, whether children would be bound by judgment against their mother on a question of their freedom; yet, even to support that doctrine, there is very high authority.

In the case of a child claiming to be free, because the mother in a suit wherein the same person was a party claiming the services of both, was adjudged free, on an allegation appearing on the record precisely found that the mother was free when the child was born, I can entertain no doubt but on principles of reason and authority, the judgment is conclusive as to the freedom of the childThe first step the defendant must take, would be to prove, that the mother was a slave; partus sequitur ventrem. The child is born free according to the condition of the mother; and if an action wherein the person claiming the services of the child is one party, and the mother is the other party, she has been declared free by the judgment of a court of competent jurisdiction, that matter cannot again be called in question. The child with the record in his hand cannot be held in slavery or servitude. There is an end to the question as to the mother. The condition of the mother is changed, and it would shake our understandings, if the law were so that a child whose mother by law had been free before her birth should, notwithstanding, be born a servant or slave. In all personal actions concerning goods, chattels, and debts, a recovery in one action is a bar in another, and there is an end of the controversy. Coke's Preface to his Eighth Reports. The judgment, which is the fruit of the action concludes the existence of the right. If this child had been born after the judgment in favor of the mother, it could not be pretended that the plaintiff below could retain her as a servant ; yet this judgment has relation to the condition of the mother when the child was born, which has been conclusively settled to be that of a free woman.

The judgment is final for its own proper use and object; and is conclusive on its subject, by way of bar to future litigation, for the thing thereby decided. The judgment was on the very right to hold the mother in slavery. That judgment was, that she ceased to be a slave long before the birth of this child. That was the immediate right in demand: the whole right of the plaintiff in this action hung on that inquiry. She claimed by and through the mother.

Freedom or slavery of the mother was the substantial matter in issue in both suits. A case in the Year Book, 13th Ed. IV. 2, 3, 4, comes up to this. It was trespass for taking a villein. The ancestor of the villein had answered in a former suit, in which it had been alleged, that he was a villein regardant; that he was free, and not a villein in manner and form as alleged; and it was so found. The son of the supposed villein relied on this finding as an estoppel; and it was held so.

The court erred in not admitting this evidence. It was not only relevant, but conclusive. Strictly speaking, as the former judgment was not pleaded, it may not be considered a legal estoppel; yet it was conclusive in evidence on the right of these parties.

2

VAUGHAN V. PHEBE, a woman of color. Jan. T. 1827. Mar

tin & Yerger's Tennessee Rep. 1.

vor of the freedom of aunt of the

ment in fa

a maternal

plaintiff on account of

her desIndian an

cent from

Phebe sued Vaughan in the court below in an action of trespass A judgand false imprisonment. Vaughan pleaded, that Phebe was a slave, and his property. To which plea Phebe replied, denying she was a slave, and the property of Vaughan. Upon which replication issue was joined. At the trial in the court below, the plaintiff offered to read to the jury the record of a verdict and judgment of the superior court of Prince George county, (Virginia,) in the suit of Tab et. el. v. Littlebury Tucker, which record established the may be refact, that Tab had in that suit recovered her freedom, on account ceived in of her descent from Indian ancestry. Tab proved to be the maternal in a suit for freedom, aunt of the plaintiff. The defendant objected to the admission of so far as to this record as evidence; but the court overruled his objection, and show the record was read to the jury. To which opinion of the court reputation the defendant excepted.

Per Cur. Crabb, J. Did the court err by receiving the verdict and judgment in the suit of Tab and others v. Tucker? That was

cestors,

evidence

show the

prevailing

of the ex istence of the right

claimed

A. and B., persons of

their bill, alleging that they

had instituted suits for free

a suit by Tab for her freedom. She obtained a judgment in her favor on the ground that she was descended from Indian ancestors, as appears from the record. Tab was the maternal sister of Beck, who was the mother of Phebe. We think that hearsay evidence, that the maternal sister of one of Phebe's ancestors was always reputed to have been descended from Indian ancestors, or that she was reputed to be free, as having been descended from Indian ancestors, would be some evidence, in a case of pedigree, to show that Phebe also was descended from the same. And, therefore, we consider the solemn verdict of a jury, upon proofs produced to them many years ago, and with the judgment of the court upon it, full as good evidence, to say the least of it, of what was considered the truth in those days.

We do not consider the question as to the introduction, for any purpose of verdicts between others than parties and privies, as involved in the determination of this case in any manner whatever. Nor is any opinion given as to the admissibility of judgments, except in the single case of a verdict and judgment offered, as hearsay evidence in a case of pedigree, as in the case before us. Such a verdict and judgment was held to be admissible by the court of appeals in Virginia, in Pegram v. Isabel, 2 Hen. & Munf. 193.; and we believe properly.

3.

SYLVIA and PHILLIS, by next friend, v. COVEY. March T. 1833. 4 Yerger's Tennessee Rep. 297.

This was a bill filed by the plaintiffs, who are people of color, color, filed alleging they have instituted a suit for freedom, and that they are apprehensive that the defendant will convey them away and sell them; and they pray that he be restrained, and that they be taken out of his hands, &c. An attachment was awarded, by virtue of which the plaintiffs were taken out of the custody of the defendant. To they were this bill the defendant demurred, relying for cause principally upon apprehensive the the ground that the act of 1817, ch. 103., had provided the plaindefendant tiff a remedy. The circuit court sustained the demurrer, dismissed the bill, and taxed Myrick, the next friend, with all the costs.

dom; that

would carry them out of the state, and

sell them, and pray

Per Cur. Green, J. The court erred in allowing the defendant's demurrer. The act of 1817, authorizing the court in which the ing that he suit for freedom may be pending, or a judge, or a justice in vacaed; and tion, to make an order requiring a defendant to give security, or, attachment on failure, requiring the sheriff to take and keep the plaintiff in his

be restrain

also for an

cery in such a case.

taken out

hands, &c.

custody, does not take away the jurisdiction of a court of chan- to have See 1 Ten. Rep. 478.; 2 Bro. C. C. 218. ; themselves 2 Wash. Rep. 121. The powers of a court of chancery are more of his ample than those of a court of law, even under this statute; and Held, upit might often be advisable to file a bill, rather than resort to the on demurremedy provided by the act of 1811. The party may, at his elec- the bill tion, resort to either mode of proceeding. Judgment reversed.

rer, that

ought to be sustained, notwithstanding the act of 1817, ch. 103.

(XXI.) OF THE ACTION TO RECOVER SLAVES.

1.

BASS V. BASS. Feb. T. 1810. 4 Hen. & Munf. 478.

An action

may be sustained

An action of detinue may be maintained for an infant negro without child of such a master without any other description.

2.

CALDWELL V. FENWICK. Fall T. 1834. 2 Dana's Rep. 332.
Fenwick sued Caldwell in detinue for two slaves; one of them,

And

naming the negro.

But will

not

lie for a slave

it appeared, was dead before the commencement of the suit. the question was, whether the action could be maintained for or who died on account of the slave that was dead.

before the action was

Per Cur. Nicholas, J. It seems to us that it cannot. The frame brought. of the action and principles of pleading forbid it. Detinue is a mode of action given for the recovery of a specific thing, and damages for its detention. Though judgment is rendered for the plaintiff for the alternate value, provided the thing cannot be had, yet the recovery of the thing itself is the main object, and inducement to the allowance of the action. The thing sued for has to be-specifically described in the writ, declaration, judgment, and execution, that it may be distinguished from other things of the same species. The action is not adapted to the recovery alone of the value of the thing detained; nor can it be maintained therefor. The alternate judgment for the value is but a mere incident to the judgment for the thing; nor can it be rightfully rendered, except where there is a judgment for the thing, from which it can result as an incident or consequence. It would seem therefore, to be an indispensable consequence, that there should be a thing sued for. A demand for a dead slave does not fulfil the requirement.