The plaintiff had, in a former action of trover, recovered the negro woman, who was the mother of the child, the subject of the present action. This child was born after the action for the mother was commenced : therefore, could not be embraced in the first action; and the only ground upon which the defendant seemed to contend against the new trial, was, that on the trial for the mother, the plaintiff had given evidence to the jury of this child, and that the jury had in their verdict given damages for its value.

*552This would be a dangerous rule, and ought never to be indulged-. The recovery of damages for the child could only be ascertained Pal'°l evidence. This would not only give uncertainty to legal proceedings, but would open a door'to.abundant frauds and perjuries. I am, therefore, for a new trial.