February 11th....WASHINGTON, J. delivered the opini- BARTON on of the Court as follows:

บ.

PETIT &

This is a writ of error to a judgment of the Circuit BAYARD. Court of Virginia, rendered upon a bond given by the Plaintiffs in error with condition for the delivery, at a certain time and place, of property seized by the marshal to satisfy an execution which had issued from the' same Court. The condition not having been complied with, this judgment was rendered upon motion and notice thereof duly served upon the obligors in the bond, agreeably to the laws of Virginia.

It is not pretended that there is any intrinsic error in this judgment to warrant its reversal; but it is contended that the reversal of the original judgment, upon which the proceedings in this record took place, requires necessarily the reversal of this judgment. The general doctrine is undeniably so; but the application of it to this case is not admitted. That the judgment in this record is dependent upon some other judgment is apparent from the bond which recites a prior execution and seizure, by the marshal, of the property mentioned in the condition, for the purpose of satisfying it; but it does not appear judicially to the Court that the recited execution issued upon the identical judgment which has been reversed. The only difficulty which the Court has felt has been to devise some proper mode in this, as well as in all similar cases which may hereafter arise, to connect with the original reversed judgment that which is asserted to be dependent upon it.

A certiorari upon a suggestion of diminution would not answer the purpose, as the proceedings in the original suit form no part of those in the subsequent suit: the only foundation of which are, the bond and notice. Neither does it appear regular for this Court to receive as evidence of the dependency of the latter upon the former judgment, the certificate of the clerk of the Circuit Court.

The Court has thought it best to direct a special writ to be framed applicable to cases of this nature, to be directed to the clerk of the Court in which the judgments were rendered, to certify under the seal of the VOL. VIE

38

v.

BARTON Court, the execution recited in the bond on which the second judgment was rendered. This difficulty can PETIT & never occur except in cases where all the proceedings BAYARD. in the original judgment, except the execution, are already before this Court. The execution, therefore, though no part of either the original or dependent record, being certified by the proposed writ, will supply the only link necessary to prove the connexion between the two judgments.

In this case, the Court from the novelty of the practice necessary to be adopted, will not permit the Plaintiff in error to suffer in consequence of his not having applied sooner for a writ of certiorari, but will now direct the same to issue. In future the party must take the consequences of his neglect, if he should fail to have the execution certified in time.

March 16th....WASHINGTON, J. The Court has examined the execution which has been sent up by certiorari, and is satisfied that the judgment on which it issued is that which was reversed at the last term. The judgment, therefore, on the forthcoming bond must be reversed also.

Hearsay evi

Present.....All the Judges except TODD, J.

ERROR to the Circuit Court for the district of Co

dence is in- lumbia, sitting at Washington.

competent to establish any specific fact,

At the trial several bills of exception were taken.

MIMA

1. The first was for the rejection of part of the deposition of Caleb Clarke, who deposed to a fact respect- QUEEN & ing the ancestor of the petitioners which he had heard his mother say she had frequently heard from her fa- v. ther.

CHILD

KEPBURN.

nature, sus

2. The second was for overruling part of the depo- which is, in its sition of Freeders Ryland, which stated what he had ceptible of beheard Mary, the ancestor of the petitioners, say re- ing proved by specting her own place of birth and residence.

witnesses who speak from their own

Claims to free

3. The third exception stated that after a juror was knowledge. sworn the petitioners excepted to him because he was dom in Marynot an inhabitant of the county, but the Court overruled land are not the exception.

exempt from
that general

rule.
After a juror
is sworn no ex-

on account of

4. The fourth exception stated that a talisman being challenged for favor, and having, upon being question- ception can be ed, avowed his detestation of slavery to be such that, taken to him in a doubtful case, he would find a verdict for the peti- his being an intioners, and that he had so expressed himself with re- habitant of another county. gard to this very case, and that if the testimony were If a juror be equal he should certainly find a verdict for these peti- challenged for tioners: the Court instructed the tryers that he did not favor, & upon stand indifferent between the parties.

5. The fifth exception was similar to the second.

examination before the tryers, he declare that if the evidence should be equal he

verdict in favor

the burden of

sound disere

6. The sixth exception stated that the petitioners, should give a having read the deposition of R. Disney, stating that of that party he had heard a report from divers persons respecting upon whom the manner of the importation of the ancestor of the pe- proof lies, the titioners, &c. the Court instructed the jury that if they Court in the should believe from the evidence, that the existence of exercise of a the report was not stated by the deponent of his own tion ought to knowledge, but from what had been communicated to reject him, alhim respecting the existence of such a report many as should not though the biyears after her importation, without its appearing by be so strong as whom or in what manner the same was communicated to render it to him, then the evidence is incompetent to prove either proper to al positively imthe existence of such report, or the truth of it.

F. S. KEY, for the Plaintiffs in error.

The principal exception is to the opinion of the Court that in tracing a pedigree, the hearsay of hearsay is

low him to be

sworn.

MIMA

not admissible. Caleb Clarke's deposition, as to what QUEEN & he heard his mother say, was admitted, but, as to what he heard his mother say her father said, was rejected. If this opinion be correct it will be impossible to prove HEPBURN. any antient fact.

CHILD

v.

JOHN LAW, contra.

Hearsay is only admissible on the ground of necessity and antiquity. 1 Wash 123. 2 Wash. 148. There was no evidence of the death of the person whose declarations were given in evidence. Hearsay of hearsay is analogous to a copy of a copy. The witness ought at least to state from whom he heard the report.

JONES, on the same side,

Every claim to freedom ought to be supported by the same kind of evidence as is necessary to support other claims. There is no rule of law that exempts it from the general principles of evidence. In the present case the hearsay was not introduced to prove pedigree nor prescription, nor custom; but to prove that a certain ancester came from England. It was the neglect of the parties that they did not urge their claim while they had legal evidence to support it. 5 T. R. 121. Outram v. Morewood. Although a general right may be proved by traditionary evidence, a particular fact cannot, except in tracing a pedigree. The admission of hearsay is an exception to the general rule of evidence, and therefore must be confined strictly to the excepted cases, which are prescription, custom and pedigree; cases in which the strength of the claim depends upon its antiquity. He who would use hearsay as evidence must first prove all the facts which would entitle him to use it, and must satisfy the Court that better evidence cannot be had. The hearsay must be of such a fact as, if the person were living, could be given in evidence by him. Hearsay evidence of a general reputation of a fact is not admissible. The witness himself must know the fact of general reputation.

There are two objections to Disney's deposition: 1. That he does not state who informed him, so that it may be known whether that person be living or not so

as himself to be a witness; and, 2. That a general reputation of a fact is not evidence.

MORSELL, in reply.

The general rule of evidence is, that if the evidence offered be the best which the nature of the case admits, and leaves no presumption that there is better behind, it is admissible.

Such evidence as this is always admitted in the Courts of Maryland, under whose laws this case was tried, and its use had been sanctioned by the authority of the highest Court of that state. The case cited by the opposite counsel shows that it is admitted not only in cases of prescription, custom and pedigree, but in all cases of the like nature. So it has been received in settlement cases, in all cases of paupers, and in questions of antient boundaries in ejectment. The evidence taken upon commissions to mark and bound lands, under the statute of Maryland, generally consists of testimony of this kind. 1 Harris and M Henry's Reports, 84, 85. After a lapse of 100 years better evidence than this cannot be expected. The general reputation of the fact that the ancestor was free is sufficient to rebut the presumption arising from color, and throws the burden of proof on the other side.

As to the admission of hearsay, he cited Peake's ev. 10 to 13, id. Appendix, p. 18.

February 18th....MARSHALL, Ch. J. delivered the opinion of the Court as follows:

This was a suit instituted by the Plaintiffs in the Circuit Court of the United States for the County of Washington, in which they claim freedom. On the trial of the issue certain depositions were offered by the Plaintiffs, which were rejected by the Court and exceptions were taken. The verdict and judgment being rendered for the Defendants, the Plaintiffs have brought the cause into this Court by writ of error, and the case depends on the correctness of the several opinions given by the Circuit Court.

MIMA QUEEN & CHILD

υ.

HEPBURN.