<p>THIS was an appeal from Charles County Court. It was an action of replevin brought in the County Court by the appellee against the appellant for a negro man named Jacob. Pleas. Property, and actio non accrevit infra tres annos. General replications and issue joined. Verdict for the appellee.</p> <p>At the trial of the cause in the County Court, two bills of exceptions were taken. The facts stated in the first bill of exceptions are also set forth in the second., which is as follows :</p> <p>In the trial of this cause the plaintiff gave in evidence from the repeated declarations of Hester Harrison, who is now deceased, and under whom the defendant claims, that a certain Thomas Smallwood being possessed as in his own right, of a negro girl slave called Judah, gave and delivered the same to his daughter Hester Harrison, in the life-time of her husband Richard Harrison.</p> <p>, The plaintiff also gave in evidence, that the said negro girl was carried home to the said Richard Harrison, and remained in his possession till the time of his death, which happened on the 28th of Marchr 1734. That the said Richard Harrison being in possession of the said negro, by his last will and testament, bearing date the 25th March, 1733 — 4, in due form of law executed and proved, devised the said negro girl and her increase, to his two daughters, Mary and Elizabeth, and to the survivor of them; and by the said will constituted and ap-. pointed Hester Harrison, his wife, sole executrix of his will, and died shortly after making the said will. That. Hester Harrison shortly after took upon herself the execution of the will, took out letters testamentary thereon, and appraised the personal estate of said Richard Harrison, amounting in the whole to the sum of 121/. 16i. 6d. current money, and among other things inventoried and appraised the said negro girl called Judah, to the sum of 12/. current money in the said estate, and soon after returned the said inventory to the their deputy commissary of Charles county, and kept the possession of the said negro as executrix under the said will. That at the time of making the said will, the said Mary and Elizabeth, daughters of the said Richard and Hester Harrison, were infants: Mary about the age of three years, and Elizabeth about the age of one year, and lived and resided with their mother until their respective marriages. That Mary intermarried with a certain Richard Robins Reeder, about the 15th June, 1752, and Elizabeth with a certain William Elgin, about the 15th September, 1753. That frequently between the death of Richard Harrison and the marriage of Elizabeth, Hester Harrison acknowledged and declared that negro Judah and her increase, belonged to her daughters, according to the will of their father, and never set up any claim in her own right to the negroes or any of them, until her daughter Elizabeth was married; shortly after which time, she perused her father Thomas Smallwood'1s will, which was produced in evidence, and is dated the 14th of April, 1/34, by which he devised as follows s Item, I give unto my daughter Hester Harrison, one negro girl now in her possession, called Judah.” That said Smallwood died on the 4th of May, 1/34, and that the said negro girl was not inventoried nor appraised as part of his estate. It appeared also in evidence, that the said Hester Harrison, having the said negro Judah and her increase in her possession, did, after the marriage of her daughter with Elgin, and the sight and perusal of her father’s will, finding the same, as she said, was dated subsequent to her husband’s death, claim the same as her property in virtue of her father’s will.</p> <p>That in or about the year 1/54, the said Richard Robins Reeder and William Elgin, took counsel upon tlieir right to the said negro and her increase, and proposed to sue for the same. That there was no legal demand made by the said Reeder and Elgin, or either of them, of the said negro and her increase. But the said Hester claimed them as her own, and declared to the said Reeder and Elgin that she would not give them up. That no suit or action at law was brought by the said Reeder and Elgin, or either of them. That the said Hester always claimed the said negroes as her own, under the will of her father, from the time the said Reeder and Elgin took counsel as aforesaid, and from the time that she saw and perused the will of her father, and never after the said Reeder and Elgin took counsel, and after she saw and perused the will of her father, acknowledged the right of said Reeder and Elgin, or either of them,, to the said negroes, and was in quiet possession of, and used the same, until the time of her death, which was about the 19th of August, 1776, and gave a negro named Tom, one of the increase of the said Judah, to her son Richard Harrison, who was in quiet possession of him till the time of his death, and devised him by his will, dated the 11th December, 1771, to Hester Harrison aforesaid.</p> <p>That negro Jacob, for the recovery of whom the present suit is brought, was one of the increase of Judah, and was born about the 1st of October, 1749, and always remained in the possession of Hester Harrison until her death, and was claimed by her under the will of her father, after the marriage of her daughter with Elgin, and after she saw and perused her father’s will. That she devised negro Jacob 'to Thomas Harrison her son, and appointed Richard Robins Reeder her sole executor, and died about the 9th of August, 1776. That the said Reeder, soon after the death of said Hester, about the 1st January, 1777, took upon himself the execution of the will, and got possession of the said negro Jacob in eonsequence of his being executor, and inventoried and appraised the said negro and all the other negroes the increase of the said Judah, and also the said Judah, in the possession of the said Hester at the'Time of her death, as in the estate of the said Hester, and shortly after returned the inventory to the then commissary of Charles county. That Elizabeth the wife of Elgin died some time before the said Hester, and that her husband survived her. That the said Reeder, after having obtained the possession of negro Jacob, and the other increase of Judah, as executor of said Hester, claimed them as his own under the will of Richard Harrison, and retained dispossession of them until some time about 1st of April, 1779. That Hezc-Uah Reeder the plaintiff, claims the said negro in virtue of a deed of division and mutual releases between the said Elgin and the said Richard Robins Reeder, of Judah and her increase, in which the said Jacob is released to the said Richard Robins Reeder, and severed as part of his share of the negroes. And in virtue of a deed from Richard R. Reeder and Mary his wife, to Hezekiah Reeder the plaintiff their son, transferring the said Jacob to the said Hezekiah.</p> <p>That the said William Ward the defendant, some time in the year lff8, was duly appointed and admitted by the Orphans’ Court for Chai les county, guardian to the said Thomas Hariison; and afterwards, about the 1st of April, 1779, the said negro Jacob accidentally came to his possession, and, as the guardian of the said Thomas, he retained them against the consent of the said Richard Reeder and Mary his wife, and the said IIeze= kiah who claims under them. That the said Richard and Alary are still living. That the said Hezekiah the plaintiff, demanded the said negro Jacob of the said William. Ward the defendant, on the 2d of April, 1779 ; and that, afterwards, on the 6th of April, 1779, the original writ in this causé was first sued.</p> <p>Upon the evidence in the first bill of exceptions, the defendant, by his counsel, prayed the Court to direct the Jury, that upon the evidence given of the said Hester Harrison perusing her father’s will, and making her claim upon the grounds declared by said Hester, no confession or declarations of said Hester before the time of her making her claim to the said negroes as her own, and while she had the care of her said children, and the possession of the said negroes for their use, undei the circumstances of being widow and executrix to the said Richard, was legal evidence against the defendant in this cause, because this evidence, as the counsel conceived, arose upon hearsay írom a person, who, at the time the declarations were made, considered her-» self interested in supporting the claim of the present plaintiff.</p> <p>But the Court were of opinion, and so directed the Jury, that such declarations and confession of the said Hester, under the circumstances aforesaid, were legal evidence against the defendant in this cause. The weight and influence of which evidence, under all circumstances and proof aforesaid given on the other side, to be considered by the Jury. To which opinion the defendant excepted.</p> <p>Upon the evidence stated in the second bill of exceptions, it w;as agreed by the counsel on both sides, that the Court should give the opinion and direction to the Jury, whether the act of limitations barred the plaintiff’s recovery ; and the counsel for the defendant thereupon prayed the Court’s direction to the Jury, that the plaintiff was barred by the act of limitations, from recovering the negro aforesaid, upon the evidence and case aforesaid.</p> <p>But the Court were of opinion,, and so directed the Jury, that the; act of limitations did not bar the plaintiff’s recovery; to which opinion the defendant excepted.</p> <p>The General Court reversed the judgment of the County Court. But whether upon both or only one of the exceptions, does not appear on the record.</p> <p>The appellee in the General Court, appealed to the: Court of Appeals j where, at May term, 1788, it Was argued.</p>
