LIGON, J.
it Í3 insisted that the court erred in sustaining the demurrer to the second plea of the defendant in the court below.
This plea was evidently intended as a plea to the jurisdiction of the court, and muss, therefore, be regarded a plea in abatement, since all plea,3 to the jurisdiction are pleas in abatement. In this aspect the plea ¡3 bad, both in its form and matter. In form, because it neither points out what other court has jurisdiction, nor does it conclude with the prayer,. “ whether the court will or ought to take further cognizance of the plea aforesaid,” both of which arc necessary in picas to the jurisdiction, when pleaded in superior courts, or courts of general jurisdiction.—3 Chit. Pl. 894; Rea v. Heyden, 3 Mass. 24; 1 Chit. Pl. 144; Mosely v. Hunter, 3 Iredell 403. The matter attempted co bo set out in the plea, if available at all, amounts to the plea of res adjudicóla, and as such should have been pleaded in bar, and not in abatement. For these reasons, we are of opinion Were was no error in sustaining the demurrer.
The next error assigned arises out of the ruling of the court • in relation to testimony offered by the defendant. It appears by the bill of exceptions, that, on the trial before the justices of the peace in November, 1848, had, as the certificate of said justices shows, under the act of Congress of February 12th, 1793, one Wyatt testified for the claimant of the slaves arrested under a warrant issued by James L. Childress, a justice of the peace,, and that Fields the defendant in this suit was the claimant in that. It was further shown, that said Wyatt had departed this life before the trial in this case. The defendant, after showing the death of Wyatt, proposed to prove what he had ¡■iwovn on the former trial. This was objected to by the counsel of the petitioners, and the objection was sustained by tbe court, [164]*164because the proceeding under the act of Congress was not suclx atrial as would authorize such proof to be made.
On an examination of the certificate of the justices, who presided on the arrest of Milley Walker and others, on the claim of Fields, the defendant in this suit, it appears that Milley, John, LeRoy and- Priscilla were the parties brought before them on the warrant of arrest issued under the act of 1793, and claimed by. Fields, as fugitives from service or labor, under that act, and that the trial then had related to the persons so arrested. If this trial were conclusive as to these, still it cannot he pretended that it could in anywise affect the rights of those of the present petitioners who were not so arrested. The petitioners in the present case are John, LeRoy, Stephen, Priscilla and Jlrmistead Walker. Milley is not here a party, nor were Stephen and Armistead arrested on the warrant of the justice of the peace. The parties, therefore, are not the same ; and for this reason, if no other, the testimony, as to what Wyatt deposed before the justices, was rightly excluded.
It is true that the certificate of the justices, after reciting a, trial before them between Fields as claimant, and Milley, John, LeRoy and Priscilla, as parties arrested and brought before them, goes on to adjudge that these persons, as well as Armistead, Eliza and Stephen, are slaves under the laws of Virginia, and owe service to Fields, the claimant. But we apprehend that such a sentence, as to the three parties last named, cannot be supported, and. that it iu a nullity, inasmuch as the recorrí does not show that they were before the court, or had any op-, portunity to defend against the claim. The court rendering the sentence is one of special jurisdiction, and no intendment can be indulged in favor of the regularity of its proceedings.
Of the parties who were not then before the justices, and who were consequently not concluded by their judgment, two are here petitioners for freedom; and as the trial appears to have been on one issue as to all the petitioners, evidence of what had been testified on a trial to which only a portion of them were parties, is not admissible.
Again : It does not appear that the proof was offered in reference alone to the two petitioners for freedom who appear to have been arrested and brought before the justices, but that ife was offered generally as to all the parties ; and when this is fcha [165]*165case, it matters little whether on separate issues it would have been good as to some of them. The court is not bound to separate it, but may reject thu whole, and it will not be error.
There is, however, another reason why the testimony offered should not have been received, and that is, that the questions arising on the proceedings before the justices of the peace under the act of 1793, and those arising m this suit, are materially different.
The questions which the magistrates of the several States, under the third section of the act of 1793, are allowed to consider, are, 1st. Are the parties claimed hold to labor, and do they owe service or labor to the claimant, under the la ws of a different State from that in which they are arrested'? 2d. Have they escaped from such service ?
The evidence before the magistrate must be directed to these two points ; and when it is shown by the claimant that the persons claimed are of African descent, and that, by the laws of the State from which the persons arrested are alleged to have escaped, such persons are allowed to be held in slavery, and that those claimed have been so belli by die claimant, this will show that they owe him service in that State, and, on this branch of the inquiry, entitle him to the certificate required by the act of Congress. But it does not satisfy tho demands of the second branch of the inquiry, ¡>n the erictence of which, conjointly with this, the jurisdiction of the magistrate depends, viz., has the party escaped from such service in the State in which the owner resides 1
The verb to escape is defined by Mr. Walker, “to fly, to avoid, to pass unobserved;” and the noun escape, “ flight, the act of getting out of danger ; in law, violent or privy evasion out of lawful restraint.” The term “ escape” presupposes a former confinement or abiding in a certain place or condition, out of which a party delivers himself by his own act, or is delivered by the act or aid of another with his concurrence. If the parties claimed in the case before the magistrates, under the act of 1793, are not shown to have escaped, in one of these senses of the term, from the service of the defendant in the State of Virginia, then it is clear that the magistrates had no jurisdiction, and their action in respect to these petitioners is not binding upon [166]*166them. If this is tho case, then no testimony offered on that trial can affect them on this.
In the certificate ox the justices it appear;;, that Milley, the mother of these petitioners, “ fled, or was stolen from the State of Virginia, before the birth of her said children
Now let us inquire what is tho condition of tho children of Milley, all of whom, it appears, wo re bom after che liad escaped from the servico of Fields, and fled oat of the Commonwealth of Virginia. Are they fugitives, who have escaped from servico or labor in another State, when they were never within the limits of that State, or subject to its lawn ? The mere statement of the proposition seems to suggest tho answer, that they cannot be so regarded.
In the ease of The Commonwealth v. Holloway, 2 Serg. & R.
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LIGON, J.
it Í3 insisted that the court erred in sustaining the demurrer to the second plea of the defendant in the court below.
This plea was evidently intended as a plea to the jurisdiction of the court, and muss, therefore, be regarded a plea in abatement, since all plea,3 to the jurisdiction are pleas in abatement. In this aspect the plea ¡3 bad, both in its form and matter. In form, because it neither points out what other court has jurisdiction, nor does it conclude with the prayer,. “ whether the court will or ought to take further cognizance of the plea aforesaid,” both of which arc necessary in picas to the jurisdiction, when pleaded in superior courts, or courts of general jurisdiction.—3 Chit. Pl. 894; Rea v. Heyden, 3 Mass. 24; 1 Chit. Pl. 144; Mosely v. Hunter, 3 Iredell 403. The matter attempted co bo set out in the plea, if available at all, amounts to the plea of res adjudicóla, and as such should have been pleaded in bar, and not in abatement. For these reasons, we are of opinion Were was no error in sustaining the demurrer.
The next error assigned arises out of the ruling of the court • in relation to testimony offered by the defendant. It appears by the bill of exceptions, that, on the trial before the justices of the peace in November, 1848, had, as the certificate of said justices shows, under the act of Congress of February 12th, 1793, one Wyatt testified for the claimant of the slaves arrested under a warrant issued by James L. Childress, a justice of the peace,, and that Fields the defendant in this suit was the claimant in that. It was further shown, that said Wyatt had departed this life before the trial in this case. The defendant, after showing the death of Wyatt, proposed to prove what he had ¡■iwovn on the former trial. This was objected to by the counsel of the petitioners, and the objection was sustained by tbe court, [164]*164because the proceeding under the act of Congress was not suclx atrial as would authorize such proof to be made.
On an examination of the certificate of the justices, who presided on the arrest of Milley Walker and others, on the claim of Fields, the defendant in this suit, it appears that Milley, John, LeRoy and- Priscilla were the parties brought before them on the warrant of arrest issued under the act of 1793, and claimed by. Fields, as fugitives from service or labor, under that act, and that the trial then had related to the persons so arrested. If this trial were conclusive as to these, still it cannot he pretended that it could in anywise affect the rights of those of the present petitioners who were not so arrested. The petitioners in the present case are John, LeRoy, Stephen, Priscilla and Jlrmistead Walker. Milley is not here a party, nor were Stephen and Armistead arrested on the warrant of the justice of the peace. The parties, therefore, are not the same ; and for this reason, if no other, the testimony, as to what Wyatt deposed before the justices, was rightly excluded.
It is true that the certificate of the justices, after reciting a, trial before them between Fields as claimant, and Milley, John, LeRoy and Priscilla, as parties arrested and brought before them, goes on to adjudge that these persons, as well as Armistead, Eliza and Stephen, are slaves under the laws of Virginia, and owe service to Fields, the claimant. But we apprehend that such a sentence, as to the three parties last named, cannot be supported, and. that it iu a nullity, inasmuch as the recorrí does not show that they were before the court, or had any op-, portunity to defend against the claim. The court rendering the sentence is one of special jurisdiction, and no intendment can be indulged in favor of the regularity of its proceedings.
Of the parties who were not then before the justices, and who were consequently not concluded by their judgment, two are here petitioners for freedom; and as the trial appears to have been on one issue as to all the petitioners, evidence of what had been testified on a trial to which only a portion of them were parties, is not admissible.
Again : It does not appear that the proof was offered in reference alone to the two petitioners for freedom who appear to have been arrested and brought before the justices, but that ife was offered generally as to all the parties ; and when this is fcha [165]*165case, it matters little whether on separate issues it would have been good as to some of them. The court is not bound to separate it, but may reject thu whole, and it will not be error.
There is, however, another reason why the testimony offered should not have been received, and that is, that the questions arising on the proceedings before the justices of the peace under the act of 1793, and those arising m this suit, are materially different.
The questions which the magistrates of the several States, under the third section of the act of 1793, are allowed to consider, are, 1st. Are the parties claimed hold to labor, and do they owe service or labor to the claimant, under the la ws of a different State from that in which they are arrested'? 2d. Have they escaped from such service ?
The evidence before the magistrate must be directed to these two points ; and when it is shown by the claimant that the persons claimed are of African descent, and that, by the laws of the State from which the persons arrested are alleged to have escaped, such persons are allowed to be held in slavery, and that those claimed have been so belli by die claimant, this will show that they owe him service in that State, and, on this branch of the inquiry, entitle him to the certificate required by the act of Congress. But it does not satisfy tho demands of the second branch of the inquiry, ¡>n the erictence of which, conjointly with this, the jurisdiction of the magistrate depends, viz., has the party escaped from such service in the State in which the owner resides 1
The verb to escape is defined by Mr. Walker, “to fly, to avoid, to pass unobserved;” and the noun escape, “ flight, the act of getting out of danger ; in law, violent or privy evasion out of lawful restraint.” The term “ escape” presupposes a former confinement or abiding in a certain place or condition, out of which a party delivers himself by his own act, or is delivered by the act or aid of another with his concurrence. If the parties claimed in the case before the magistrates, under the act of 1793, are not shown to have escaped, in one of these senses of the term, from the service of the defendant in the State of Virginia, then it is clear that the magistrates had no jurisdiction, and their action in respect to these petitioners is not binding upon [166]*166them. If this is tho case, then no testimony offered on that trial can affect them on this.
In the certificate ox the justices it appear;;, that Milley, the mother of these petitioners, “ fled, or was stolen from the State of Virginia, before the birth of her said children
Now let us inquire what is tho condition of tho children of Milley, all of whom, it appears, wo re bom after che liad escaped from the servico of Fields, and fled oat of the Commonwealth of Virginia. Are they fugitives, who have escaped from servico or labor in another State, when they were never within the limits of that State, or subject to its lawn ? The mere statement of the proposition seems to suggest tho answer, that they cannot be so regarded.
In the ease of The Commonwealth v. Holloway, 2 Serg. & R. 305, the question was, whether the child of a fugitive slave, born in Pennsylvania, more than twelve months after she had escaped from Maryland, and resided in tho former State, was bond or free. By tho lavra of Pennsylvania, all chilclrc a horn within her limito are freo, irrespective of color; while by tho laws of Maryland, the children of a slave mother are themselves slaves. The Supreme Court of Pennsylvania hold, that the. child was free, notwithstanding the bondage of the mother, and while the latter was readily sunendered under the act of 1783, the child was retained, because it was entitled to its freedom.
Our own court, at its proseat term, lias hold that, where a master who was indebted, and against whom judgments were obtained, carried his female slave to tho State of Ohio, and there emancipated her ; and she, seven months after her emancipation under the laws of Ohio, brought forth a child in the State of Indiana, another free State, snob child was absolutely free, although the mother, on her return to this State, would, under our statutes, bo subject to the debts of the master, existing at the time she was taken from this State for tho purpose of emancipation.—Union Bank v. Benham, at the present term.
These citations are mode to show, that all the incidents of the mother’s condition at the time of the birth of the child do not invariably attach to the offspring. In the former case, although the status of the mother was that of a fugitive slave, and her slavery, under the constitution of the United States and the acts of Congress, attached to her as well in Pennsylvania as in Ma[167]*167ryland, and tin's could not bo affected by any 'State legislation whatever, yet the child, being begotten and born in a free State, was entitled to the protection of its laws, and could in no just sen.se be said to have escaped from service in Maryland. In the latter, the mother of the child, although free in Ohio and Indiana, was made so by the act of a debtor, which, by our laws, is regarded as a fraud on the rights of his creditors, and consequently void as to them, should the slave thus emancipated return within the jurisdiction of this State. Yet, notwithstanding the mother’s status, on her return to this State, was that of slavery, so far as the creditors of her former master are concerned, this incident of her condition did not attach to the child born in Indiana after her emancipation, although she brought it here with her.
So, in this ease, notwithstanding the mother of the petitioners may be a fugitive slave who escaped from the service of her master in Virginia, yet the petitioners, although in this view of the case they would be slaves, because they were born of a slave mother in a State where slavery exists by iawj cannot be regarded as fugitives, or slaves which have escaped from service In another State, within the meaning of the constitution of the United States, and the act of Congress of the 12th Feb. 1793.
By that act, the magistrates of the several States are vested with power and jurisdiction only over persons who have escaped from service or labor in one State, and have fled to another.—U. S. Statutes at large, vol. 1, ch. 7, p. 302-3-4.
It does not appear that the petitioners in this case can, in any just sense of that term, be said to have escaped from the service of Fields, in Virginia; and as to them, the proceedings before the justices of the peace in Tuscaloosa county are wholly without authority of lav/. Ash is shown that Wyatt, the deceased witness, had been examined only in that proceeding, there was no error in excluding proof of what he then swore, from the jury, on the trial of this case in the court below, because the only matter which could lawfully arise on the trial before the justices, must relate to Miiley Walker alone.
It is said, however, that the certificate of the justices shows that the parties appeared and contested the matter before them, and therefore they have submitted to their jurisdiction, and will not be allowed to repudiate it. We have seen that they had no [168]*168jurisdiction over the subject matter of any litigation which could arise between the parties to this record, cm the question of service due from one to the other, and no consent could possibly bestow it upon them. But it; is not true that the record of the justices proves the appearance before them of all these petitioners, and a contest with the defendant on that occasion. A part of them, with their mother, are said to have been heard by counsel, though not all. This, however, is a matter of small importance, as it could not have conferred jurisdiction.
The appellant in this case had no greater right to proceed against the children of Miiley, who were born in this State, under the act of 1793, than ho would have had to uso that act for the recovery of slaves bequeathed to him hero, while he was a resident of the State of Virginia. In either case, he might take possession of them peaceably, without, any process whatever, wherever he could find them; and if they were withheld from him, the laws and process of this State were at his command to enforce his right, or, if the value was sufficient to give the Federal Courts jurisdiction, they too were open to him. But as the petitioners in this case had never escaped from labor or service in Virginia, they could not be proceeded against under the act of 1793.
There is no error in the record, and the- judgment is affirmed.