v. It is necessary to dissipate the cloud of pleading in DUNLOP which this case is enveloped, in order to form a distinct idea of the questions intended to be brought to the view MUNROE. of the Court below. The object is to charge the post-master with the loss of money sent by mail; and the points, which the exceptions are intended to make, are, how far he is liable for his own act or neglect, how far for the acts or neglect of his assistants, and what evidence shall be sufficient to support the Plaintiff's action. But unfortunately, as not unfrequently happens in this complex and injudicious mode of conducting a suit, with all the clerical skill displayed by counsel in multiplying their counts and pointing their bills of exceptions, the principal questions are really, at last, not brought to the view of this Court. On the first and second exception it is unnecessary to make any remark, as they are admitted to apply to counts which the evidence did not support and have been, in fact, abandoned. The third exception is intended to raise the question how far a post-master is liable for the neglect of his assistants; but, connected with the pleadings, it presents another and a very different question, to wit, whether, when the issue is taken upon the neglect of the postmaster himself, it is competent to give in evidence, neglect in the assistant acting under him. Now the distinction between the relation of a post-master to his sworn assistant acting under him, and between master and servant generally, has long been settled; and although the latter relation might sanction the admission of such evidence, we are unanimously of opinion that, if it is intended to charge a post-master for the negligence of his assistants, the pleadings must be made up according to the case; and his liability then will only result from his own neglect in not properly superintending the discharge of their duties in his office. In the fourth exception, the only difference between the opinion prayed for and that given, is, that the Court require the loss to be a consequence of not forwarding DUNLOP the letter described in the declaration. Now, in justice บ. to the correctness of the Plaintiffs' counsel, this Court MUNROE. hope that they meant nothing more than what the Court conceded; for, certainly, if the loss was not a consequence of the state of things made out in the evidence, they were not entitled to recover. On the fifth exception it is only necessary to remark, that if the Court below erred at all, it was in conceding too much to the prayer of the Plaintiff. An entry on the post-bill is by no means conclusive evidence of the transmission of a letter, for, it may still never have been put into the mail, or may have been stolen in its passage. $ The sixth exception is equally untenable. The instructions of the post-master general spoke for themselves. If the one superseded or rescinded the other, the evidence was to be sought for by comparing them together. And the seventh exception affords the Court an opportunity to remark how much more conducive to the purposes of justice it would be to substitute special verdicts, and demurrers to evidence, for the tedious and embarrassing practice of the Court from which this case comes up. It is a fact that this bill of exceptions claims a right of recovery without stating any loss or damage whatever. The opinion prayed for was, that if the jury believed the various facts therein detailed, then it is incumbent on the Defendant to make out a just, reasonable and sufficient excuse for omitting to forward the letter described. But, unless an individual has sustained some loss or damage by an omission of that kind, why should the post-master be held to make out a defence? Each bill of exceptions must be considered as presenting a distinct, substantive case; and it is on the evidence stated in itself alone that the Court is to decide. We cannot go beyond it and collect other facts which must have been in the mind of the party, and the insertion of which in this bill of exceptions could alone have sanctioned the opinion as prayed for. Upon the whole, the judgment below must be af firmed. ERROR to the Circuit Court for the district of A verdict and Columbia, sitting at Washington. judgment that the mother was born free of the freedom The Defendants in error, John Davis and others, is not concluwere children of Susan Davis, a mulatto woman, who sive evidence had obtained a judgment for her freedom in a suit which of her chilshe had brought against Caleb Swann, to whom she had dren-unless been sold by Wood the Plaintiff in error. The petition of the children stated that their mother Susan Davis, had obtained a judgment for her freedom upon the ground that she was born free. The issue was joined upon the question whether the petitioners were entitled to their freedom. Upon the trial of this issue, in the Court below, the Plaintiff in error, Wood, tendered a bill of exceptions which stated that it was admitted that the petitioners were the children of Susan Davis; and they produced the record of the judgment in favor of their mother Susan Davis against Caleb Swann, (in which case her petition stated that she was born free, being descended from a white woman; and the issue joined was upon the question whether she was free or a slave.) And it was admitted that Susan Davis had been sold by Wood to Swann before the judgment; whereupon the petitioners, by their counsel, prayed the Court to direct the jury, that the record aforesaid and the matters so admitted were conclusive evidence for the petitioners in this cause; and the Court directed the jury as prayed: to which direction the Defendant, Wood, excepted. F. S. KEY, for the Plaintiff in error, contended, 1. That Wood was not a party, nor privy to any party, to the suit of Susan Davis against Swann, and between the same parties or privies. WOOD v. DAVIS. is, therefore, not concluded by the judgment in that case: and 2. That the judgment was only proof, that Susan Davis was free at the time of the judgment; not that she was born free, and therefore it did not appear that she was free at the time of the birth of the petitioners. She might have been manumitted after the birth of her children, and so entitled to her freedom at the time of the judgment, and yet the petitioners might remain slaves. The only issue ever joined in Maryland (under the laws of which state this case was tried) upon a petition for freedom, is, whether the petitioner be free at the time of issue joined-not whether she were born free2. Harris's Entries, 530. It is immaterial what title is set out in the petition. The petitioner is not confined to it, but may, on the trial, show any other title to freedom-the practice in Maryland is merely to state in the petition that the petitioners is entitled to freedom and is holden as a slave. The act of assembly of Maryland, of 1796, directs that the jury shall be charged to determine those allegations in the petition which may be controverted. The only allegation controverted is that the petitioner is free. DOVAL, J. stated that in all the petitions which he filed in Maryland, in the cases of the Shorters, the Thomases, the Bostons, and many others, he always stated their title at large, tracing it up to a free white woman; and after judgment in those cases, the Courts always held, that the subsequent petitioners who claimed under the same title, were only bound to prove their descent. C. LEE, contra. The issue in Susan Davis's case is, in fact, whether she was born free. And the case of Shelton v. Barbour, 2. Wash. 64, shows that the verdict is conclusive as to all claiming under the same title. Wood's title was the same as Swann's-and that of the petitioners the same as that of Susan Davis. F. S. KEY, in reply. Wood did not claim under Swann, but Swann claimed under Wood. There was no privity between them, as to the children. Swann could do nothing to injure Wood's title to them. March 10th....All the Judges being present, MARSHALL, Ch. J. Stated that the opinion of the Court to be, that the verdict and judgment in the case of Susan Davis against Swann, were not conclusive evidence in the present case. There was no privity between Swann and Wood; they were to be considered as perfectly distinct persons. Wood had a right to defend his own title, which he did not derive from Swann, Judgment reversed. WOOD v. DAVIS. MORGAN v. REINTZEL, 1812. March 9th. Present.....All the Judges. ERROR to the Circuit Court for the district of Columbia sitting in Washington, in an action of as- In a suit asumpsit brought by Reintzel against Morgan upon against the mapromissory note made by Morgan payable to Reintzel, ker of a pro or order. missory note, by an indorser who has been obliged to take The declaration contained three counts: 1st. Upon it up, the the promissory note in the usual form under the statute Plaintiff must of Anne; 2d. For money paid, laid out, and expended; and 3d. The following special count, viz. : produce the trial. sit on the part “And whereas also afterwards, to wit, on," &c. "the by the indorsaid William Morgan, according to the custom and usage ser after protest, is a good of merchants, made his certain note in writing, com- consideration monly called a promissory note, his own proper hand for an assumpbeing thereto subscribed, bearing date on the day and of the maker year aforesaid, (August 9th, 1809) by which said note to pay the athe said William Morgan, sixty days after the date mount of the thereof, promised to pay to the said Anthony Reintzel, of protest. or order, five hundred dollars, without offsett, value received; and then and there delivered the said note to VOL. VII. 36 note with costs The maker of a promissory note, payable |