April 1st, 1817,

pronounced the Court’s opinion.

The Court is of opinion that, to support the plea of justification to the second Count in the declaration in this case, it was sufficient for the Appellant’s Testator to shew that the slave Nan, in the first plea averred to be “ his property,” had been a long lime in his possession as a slave, and was purchased by him as such ; notwithstanding the pendency of a suit at that time by the said Nan for her freedom.

The Court is farther of opinion that, if it had been competent to the Appellee to inquire into her right to freedom, in this cause, an issue thereupon ought to have been tendered by him, whereby the Testator of the Appellants might have known to what point to apply his evidence. On this ground, the Court is of opinion, that the Judgment of the said District Court is erroneous, which is therefore reversed with costs, and the Verdict set aside: and, the said John Hook having departed this life, and the Court being of opinion that the action does not survive against his Executor or Administrator, it is ordered that the suit be abated.