Offutt v. John

• Decision Date: 31 July 1843
• Parties: OFFUTT v. JOHN (A MULATTO).
• Court: Missouri Supreme Court

8 Mo. 120

OFFUTT

v.JOHN (A MULATTO).

Supreme Court of Missouri.

July Term, 1843.

APPEAL FROM THE RAY CIRCUIT COURT.

EDWARDS, for Appellant. 1. That hearsay is competent original evidence only, where the fact sought to be proved, from its nature absolutely, or at least usually, excludes proof by direct evidence; as in questions of relationship, character, prescription, pedigree, and the like. 1 Starkie's Ev. 30; Peake's Ev. 22. And the tests of its admissibility are, 1st. That the fact to be proved be of a public nature. 1 Starkie's Ev. 33, 43. 2nd. That neither reputation, nor traditionary declarations, are admissible to prove a particular fact. 1 Starkie's Ev. 34; Outram v. Morewood, 3 East; 2 Peters' Dig. 224.

To warrant the admission of hearsay as secondary evidence, it is necessary. among other things, in addition to the above tests, to lay a foundation: 1st By showing that the superior evidence, in place of which the secondary is offered, is no longer attainable, as by showing the death of the person who made the declarations. 1 Starkie's Ev. 158-9. 2nd. Declarations as to pedigree are not admissible, unless derived from persons connected with the family. 1 Starkie's Ev. 43; Peake's Ev. 22; Jackson v. Browner, 18 Johns. R. 37. 3rd. The declarations must be free from suspicion, and not made post litem motam. 1 Starkie's Ev. 44, and note. 4th. The circumstances which warrant the admission of hearsay as secondary evidence must first be proved. 1 Starkie's Ev. 159.

2. The record of the suit between Love, the reputed mother of the appellee, and Robert Walker, from the Montgomery Circuit Court, in the State of Kentucky, is not admissible in evidence in this suit. 1st. It is res inter alios acta. 1 Starkie's Ev. 58, 120, 214, 217, 220; Dale and others, Ex'rs, v. Rosevelt, 1 Paige, 13; and, particularly, Davis v. Wood, 1 Wheaton, 6. 2nd. The record does not disclose the facts on which she was adjudged free, and her right of freedom may have accrued subsequent to the birth of the appellee. Walker may have had no title, and yet she may have been the rightful slave of another. 2 Johns. R. 24; 1 Starkie's Ev. 217, 221, 222, 224. 3rd. Is not the record defective, showing that exceptions were had which no where appear? Does it appear that the suit was ever prosecuted to a final determination?

3. Were the copies of depositions, included in the transcript of Logan Circuit Court record, admissible in evidence, the deponents having been proved to be dead? 1 Starkie's Ev. 43, 264-67; Peake's Ev. 89, note; 15 Johns. R. 539; 11 Johns. R. 446. The only question which can arise is, whether they are sufficiently authenticated by the certificate of the clerk? 1 Starkie's Ev. 167, 178. In Chirae v. Reinecker, 2 Peters' R. 613, depositions had been taken in France; they were lost, and in a subsequent suit, the bill of exceptions taken at the former trial, and containing the depositions, were allowed to be read in evidence.

4. It never was the settled common law doctine, that to render a former verdict and judgment conclusive between the parties, it must be pleaded by way of estoppel. The weight of authority in England is clearly against the doctrine, at least, in all suits which do not require special pleading, as in assumpsit. In the United States, the general doctrine clearly is, that a verdict and judgment between the parties is conclusive, and equally conclusive whether pleaded or given in evidence under the general issue, in cases where it is admissible under that issue. 19 Johns. R. 162; 7 Cranch, 481; 3 Wheaton, 238; 6 Wend. 447. Opposed to the doctrine contended for by the appellee are, in England, the cases of Hitchen v. Campbell, 2 Blacks. 827; 3 Wills, 304, S. C.; Budd v. Randal, 3 Burr. 1035; and Scott v. Shuman, 2 Blacks. 977. See also Peake's Ev. 63, 64. It is singular that, in the case of Evelin v. Haynes, 3 East, 36, and Miles v. Rose, 5 Taunt. 705--regarded as leading cases--the former judgment and verdict could not have been conclusive if pleaded, being cases in which verdict had been given on the general issue, in an action on the case, where the right was never pointedly put in issue. In Virginia, Maryland, Tennessee, Pennsylvania, New York and other States, the doctrine has been expressly rejected. See Shelton v. Barbour, 2 Wash. 64; Preston v. Hervy, 2 Hen. and Munf. 55; Edwards v. McConnell, 1 Cooke's R. 305; 3 Cowen, 120; 4 Cowen, 559; 3 Wend. 27; 10 Wend. 84; 14 Mass. R. 241; 17 Mass. R. 365. The United States Supreme Court have, on several occasions, recognized and acted upon the same doctrine. See United States v. Nourse, 9 Peters' R. 8; and Young et al. v. Black, 7 Cranch, 565. In Missouri the question is no longer open. McKnight v. Taylor, 1 Mo. R. 282, was an action of assumpsit brought on a promissory note; plea, non-assumpsit. The defendant gave in evidence, under that issue, a former judgment, on the same subject-matter, in his favor; held by the court to be a bar. Penrose v. Greene, 1 Mo. R. 774, was an action of replevin; plea, non-detinet: a former verdict and judgment were given in evidence; held to be conclusive. La Joye v. Primm, 3 Mo. R. 529, recognizes the same general doctrine.

5. According to the authority of Chitty and Starkie, relied on by the counsel for the appellee, such verdict is pregnant evidence and argument, before the jury, of the fact in dispute. But the court, in the case at the bar, refused to instruct the jury that it was even prima facie evidence. Chitty's Contr. 301; 1 Starkie, 228.

6. Was it not the intention of the Legislature, in authorizing the admission of special matter under the general issue, in suits for freedom, to give such matter as conclusive a character as if pleaded specially? The case stands on the same ground as that of constables, justices of the peace, and other public officers sued for misconduct, who are allowed by statute to plead the general issue, and give special matter in evidence. See Saund. Pl. and Ev. 96, 691; 3 Camp. 378; 1 Chitty's Pl. 541.

7. If such verdict and judgment is not conclusive against a petitioner for freedom, neither can it be conclusive for him. A colored person liberated from servitude on one day, may be seized by his oppressor the next, and, if not protected by the verdict and judgment, may be again enslaved.

8. The verdict and judgment, read in evidence by the defendant, is conclusive of the rights of the parties, until the plaintiff shows that his right to freedom has accrued subsequent to the rendition of said judgment. In this case the plaintiff predicates his claim solely on the ground that his mother was a white woman. 4 Randolph, 134; and, particularly, Shelton v. Barbour, 2 Wash. 64, before cited. See also the whole doctrine, as to the effect of a former verdict and judgment between the parties, ably examined in Cowen and Hill's notes to Phillips' Evidence, part 2, p. 804.

9. Does the verdict authorize the judgment?

DUNN, for Appellee. 1. Reputation is evidence to prove a pedigree, including the state of the family, as far as regards the relationship of its different members, their births, marriages and deaths. See 1 Starkie's Ev. 32; 8 Johns. R. 128; 10 East's R. 120; 4 Camp. 401. 2. The record of the case of Love (the mother of the plaintiff) v. Walker, is admissible in evidence as an introductory fact to a link in the chain of the plaintiff's title to freedom, and as that fact might be proved by general reputation, it may be established by a judgment between different parties. See 4 Wheat. R. --; 1 Starkie's Ev. 251; 1 Martin and Yerger's Tenn. R. 1; 1 East's R. 355. 3. That part of the transcript in the case of John v. Elsley Offutt, in which the clerk of the Logan Circuit Court states what purports to be copies of depositions read on the trial, not being in the bill of exceptions in that case, and being a part of the record, was properly excluded by the court. See 4 Mo. R. 626; 5 Mo. R. 110; 6 Mo. R. 162; 1 Bibb R. 266; d Rev. St. 220. 4. The verdict and judgment in that case may have been obtained upon the evidence of the present defendant, and this ought to have excluded the whole record, together with the pretended copies of depositions. 1 Starkie's Ev. 220, 266. 5. The present defendant would not have been prejudiced by a contrary verdict and judgment in the case of John v. Elsley Offutt and he cannot now be permitted to derive the benefit of it. The prejudice and benefit must be mutual. 1 Starkie's Ev. 220. 6. The course of action in the case of John v. Elsley Offutt was different from that in the present case: consequently, the former judgment is no bar. 4 Day's R. 431; 3 Wend. R. 31; 1 Starkie's Ev. 221; 2 Johns. R. 24.7. The defendant, having pleaded not guilty, thereby elected to submit his case to the jury, and the former judgment would only have been conclusive, if pleaded in bar to the action, by way of estoppel. 3 East's R. 346; 2 Barn. and Ald. 668; 1 Chitty's Pl. 512, note (c); ibid. 548, 549, 635; 1 Starkie's Ev. 226, 227; 4 Day's Cases in Error, 274; 6 Rand. R. 86, 94; 2 Blackf. R. 465; 3 Wend. R. 27; 2 Johns. R. 24; 2 Digest N. Y. R. 865, 866; 8 Wend. R. 9; 7 Johns. R. 20. 8. The legislative intention must be expressed with irresistible clearness, to induce a court to suppose a design to overthrow a fundamental principle. 1 Cond. R. S. C. U. S. 229, 431; 2 Cranch R. 358. 9. The admission of evidence out of the usual course of practice, is a matter of discretion with the court, and is no error; more especially as the evidence admitted was not necessary. 4 Mo. R. 360; 7 Mo. R. 115; 1 Starkie's Ev. 180. 10. Where there is a contrariety of evidence, the court will not grant a new trial, unless the evidence strongly preponderates in favor of the party seeking a reversal of the judgment. 1 Starkie's Ev. 470; 4 Mo. R. 295; 6 Mo. R. 61.

NAPTON, J.

This was an action brought by the appellee to establish his freedom, under the provisions of our statute regulating the mode of proceeding in such cases. The...