3 N.J.L. 570

[page 570]

Patton was the plaintiff below, and brought an action of assumpsit, against Prall, on the warranty of two female negroes, sold by Prall to Patton, at Baltimore, in Maryland. Patton alleged in his declaration, that Prall warranted the negroes to be slaves, but that the negroes were free. On the trial it appeared by the bill of sale, that Prall sold the negroes as slaves, and warranted and defended them against himself, his executors, administrators and assigns, or every other person or persons. It also appeared in evidence at the trial, that Prall had represented to Patton at the time of the sale, that he had obtained the negroes in Maryland, from the estate of a deceased relation; there was evidence, however, that he had taken the negroes from Jersey. After Prall had left Baltimore, the negroes found friends, who set up their freedom under the laws of Maryland, and obtained process, and took them out of the hands of Patton; they were put into the hands of one Hicks, who had been active in asserting their freedom. A record of a judicial proceeding had in the County Court of Hartford county, Maryland, between the negroes and Hicks was offered in evidence by the [page 571] plaintiff below. The admission of this evidence was objected to by the defendant below, Prall; but admitted by the court. A bill of exception was taken to the proceeding below; on which this writ was brought. Several objections were taken to the proceedings below, but the argument and decision of the court turned on the admission of this record. The record from Maryland when read, show a proceeding had for the freedom of the negroes. The negroes petitioned the court, alleging that they were free; that they were held in servitude by Hicks; and then Hicks came in, and in answer could not deny but that they were free. On which they had judgment. It did not appear that Prall had any notice of the proceeding in Maryland.

For the plaintiff in error, it was said by his counsel, that the only evidence of the freedom of the negroes was the record. That the record was inadmissible. It was res inter alios acta. Prall was no party to it, and ought not to be affected by it. That it established no fact that could operate against Prall.

The counsel for the defendant in error, did not deny that the record was res inter alios actor. But contended that this rule was subject to many modifications; one was, that the judgment, or sentence of any court of competent jurisdiction, was evidence of the facts found by it, or the right established by it; especially when it was of such a nature, that any one concerned in interest, might become a party to it. That it was so in the case of a warrantee of a horse; the action is between a stranger and the warrantee, and not between the warrantor and warrantee; but yet it was evidence against the warrantor. And so in the case of a corporation; 2 Stra. 1009. It is admissible but not conclusive evidence; 5 Bur. 2601. It is admissible where a judgment or jurisdiction proceeding shall show a personal right of character; 4 Coke, 29. Also in case of executor, or no executor. The certificate of the ordinary, which is a sentence, is evidence of the executorship [page 572] in all courts; also in cases of revenue, admiralty and prize causes; where the party might have interposed his claim, it is admissible evidence; 2 Show. 232; Tho. Ray, 336; 9 Mod. 66. These negroes were taken out of the hands of the defendant in error, by legal process. The judicial proceedings in Maryland, established a personal right to freedom in the negroes in question; a person once declared free in court of justice, is always, and in all places free. In 2 Hening and Munford, 200, the court admitted the record of a judgment between other parties to prove prima facie the freedom of one of the parties in the suit then depending.

In reply, it was said, that the case in Strange was a case of sub-bailiff. Judgment of ouster was against his principal, and therefore, there was a privity between them; that there was also privity between members of a corporation; that in cases of illegitimacy and the like, the ecclesiastical courts had exclusive jurisdiction, hence, the exclusiveness of the facts adjudged in those courts. That the case in Burrow, was the admission of a record of two hundred years standing, to prove a seizin in the Crown, and was an exception to the general rule; to come within an exception to a general rule, you must make your case like it. That cases in admiralty, were cases in rem, and did not apply. That it required a strong case to bear down a general rule. That the question was, not whether the evidence was sufficient to maintain the action, but whether the record from Maryland was admissible.

KIRKPATRICK, C. J.

Was of opinion that the record was inadmissible evidence on the issue; and therefore, that the judgment of the Common Pleas be reversed.

ROSSELL, J.

In the short time we have had to consider this question, I have not been convinced that the evidence admitted by the Common Pleas of Somerset, was illegal, or that the judgment of that court should be set aside. The general rule, that a judgment between other parties, should not be given in [page 573] evidence against a stranger to the suit, will not admit of dispute; like all other general rules, it was instituted for the better administration of justice, and should never be made use of in direct violation of its original intention. He then, who cannot show himself within the reason and spirit of the rule, has no right to claim its extension to his particular case. The reason on which that excellent rule was formed, I take clearly to be--that a party who might possibly be prejudiced by the production of a judgment between third persons, had no opportunity of being heard in his defense. Exceptions to this general rule, are sometimes allowed, and if ever there was a case to which courts would extend an exception, it should be like the present, where fraud appears to have been practiced, where liberty would be favored, and where, from the relative situation of the parties, much difficulty must necessarily arise.

Prall, the defendant below, is followed to his place of residence, in Somerset, by a stranger from a distant State, and prosecuted in the court of his own county for the recovery of a sum of money paid him by the plaintiff, in the suit for two blacks sold him by the defendant, as slaves, and to whom, it is alleged, he had no right, they being both free at the time of the sale. In support of this action, the plaintiff offered in evidence, a copy of the process by which these blacks were soon after taken out of his service, of the records of the court of Maryland, duly certified, permitting them to go at large. It is strongly urged by the counsel for Prall, "that as he was not a party to the suit in Maryland, for the liberation of these negroes, and had no opportunity of showing his right to their service, and the fairness of the sale, the Court of Common Pleas of Somerset were in error in admitting these proceedings in proof." I think not. The claim to the servitude of these blacks, which he alleges he had no opportunity of substantiating before the court of Maryland, he was in the [page 574] present action, under every favorable circumstance of time and place, called on to substantiate at his own home. The question, as to him, was by no means settled. Could he here have proved the sale made in good faith, he was justly entitled to a verdict in his favor, and he had not a shadow of pretense to say, that he was precluded by the decision of the court of Maryland, from giving in Somerset, proof of the slavery of the blacks, and the justness of the whole transaction. This was the gist of the action there, it was also the gist of the action here; and in no possible way could Prall be prejudiced by the judgment in Maryland, had the negroes in question been his property at the time of the sale. He is not then within the reason of the general rule of which he claims the benefit, and cannot be entitled to it. The evidence admitted by the court of Somerset, went only to show, that by a power, over which Patton had no control, these blacks were taken out of his service; it was certainly necessariy for him to show this, or he could not maintain his action against Prall. He must necessarily prove it by parol testimony, or by a copy from the records. Had he attempted to introduce parol evidence, the defendant would with much more reason have opposed it, as not being the best evidence, viz.: a certified copy of the record. If he succeeds in precluding the copy, the plaintiff, who has actually paid a large sum of money, by the contrivance of the defendant, without a valuable consideration, is left destitute of a remedy, and the justice of the country is eluded. I am therefore of opinion, from the whole case, that the judgment be affirmed.

PENNINGTON, J.

As the record from Maryland is between other parties, it was res inter alios acta and prima facie inadmissible. It becomes necessary then, to look into the record, and see what relation the facts adjudged, if any there were, had to the issue under trial. The issue below, was freedom of the negroes at the time of the sale. The record, taken in [page 575] connection with the facts proved in the cause, (and without those facts it cannot be understood) is in substance, this: after the departure of Prall from Baltimore, Hicks interested himself in favor of the negroes, and at his instance they were taken out of the hands of Patten, and were taken to Hicks' house; and while there, the negroes petition the court, stating that they were free, and that Hicks unlawfully held them in servitude. Hicks in answer, says, that he cannot deny the fact, and the negroes have judgment. This record was offered to the jury to prove the fact of the freedom of the negroes, at the time of the sale. In my opinion, it was inadmissible evidence on the issue, and was calculated to mislead the jury. I agree to the Virginia case, cited from Hening and Munford. In that case, the issue was the freedom of the plaintiff. The court permitted the plaintiff to give in evidence, a record between other parties, which record disclosed this fact; that the female ancestor of the plaintiff was adjudged free at a certain time, anterior to the commencement of the action under trial; this bore directly on the issue. In the present case, the record from Maryland, (putting out of view the evident marks of collusion) at most, goes to establish this fact, that the negroes were free at a time subsequent to the sale, by Prall to Patten; this might all be true, and yet they may have been slaves at the time of the sale; the evidence must be confined to the issue.

Judgment of the Common Pleas reversed, and a venire de nova awarded. ¹