delivered the opinion of the court.
Harriet Lemons brought this action of ejectment against A. A. Harris and John Randall to recover the land described in the declaration. She claims title to the property as the legitimate child and sole heir at law of Henry Diggs, deceased, the former owner. The defendants, on the other hand, claim through deeds from a brother and sister of the decedent, who also maintain that they are his real heirs.
Henry Diggs, the putative father of the plaintiff, and Margaret, her mother, were negroes and slaves, and she was born in Virginia during the civil war. The case was twice tried. At the first trial there was a verdict for the plaintiff, which the court set aside. The second verdict was for the defendants, and upon that verdict the judgment under review was rendered.
The action of the court in setting aside the verdict at the first trial is assigned as error, and we are now asked (in accordance with the statute, Acts 1891-2, p. 692) to enter judgment on the first verdict. There is no certificate of the evidence upon which that verdict was founded, and the motion is rested on the agreed statement that “the *811defendants moved the court to set aside the verdict on the ground that it was contrary to the law and the evidence, and that the sole ground relied upon by the defendants was that the court allowed counsel for the plaintiff in the argument of the case to refer to section 2554 of the Code, which is in the following words: ‘The issue of a marriage deemed null in law, or dissolved by the court, shall nevertheless be legitimate’; and that one of the witnesses for the plaintiff . . . testified that she was present ivhen the ceremony of marriage was performed between the reputed father of the plaintiff and her mother during the civil war. ... To which action of the court, in setting aside the verdict of the jury, the paintiff . . . excepted.”
Manifestly this court cannot reverse the ruling of the circuit court in setting aside the first verdict in the absence of the evidence. It may be that the sole ground relied on by the defendants was that the court permitted counsel to refer to section 2554, but it does not appear what reasons may have controlled the court’s action, and without having the evidence before us we cannot pass upon that assignment.
We may remark, however, in passing that counsel ought not to have been permitted to refer to section 2554. It had no possible bearing on the case, and such reference was calculated to mislead the jury.
Professor John B. Minor, in his admirable historical discussion of slavery in Virginia, observes: “Previous to February 27, 1866, the marriage laws of Virginia did not contemplate nor include negroes, not even free negroes, at least in respect to any penalties for disregard of the laws touching license or prohibition of bigamy, of incestuous marriages, or lewd cohabitation; and hence marriages of free negroes (those of slaves being void) were governed altogether by the common law.” 1 Minor’s Inst. (4th ed.), p. 268. The author, at page 188, says: “It is agreed that *812slaves have no power to make contracts. Hence the marriages of slaves are void.”
Again, at page 268, attention is called to the act of February 27, 1866, as follows: “By the act of February 27, 1866, all distinction between white persons and negroes as to the mode of contracting marriage is obliterated, although, as we have seen, it is still penal for a white person and a negro to intermarry. And it is provided, in order to meet th'e case of the colored population, especially of that part which had been slaves, that where colored persons (which phrase includes free colored persons as well as slaves) have cohabited as husband and wife, and were then so cohabiting (27th February, 1866), whether the rites of marriage had been celebrated between them or not, they should be deemed husband and wife, and their children, whether born before the act or after, should be legitimate. And that if they had then ceased to cohabit, the children of .the marriage recognized by the man should be deemed legitimate. V. O. 1875, ch. 103, sec. 4; V. C. 1887, ch. 100, sec. 2227; Francis v. Francis, 31 Gratt. (72 Va.) 286-7; Smith v. Perry, 80 Va. 563.
“It is not necessary under this statute to prove an agreement in terms that the parties will take one another as husband and wife, but the fact of the relations existing may be established by the acts, conduct and conversation of the parties.” Francis v. Francis, 31 Gratt. 287.
The two assignments of error with respect to the refusal of the court to grant the prayer for a special jury and to set aside the order awarding a new trial because when the motion was made the defendants had not paid the costs of the previous trial, are both without merit. The granting or refusing to grant a special jury is a matter resting in the sound discretion of the court, and it does not appear either that the discretion was abused in this instance or that the plaintiff was prejudiced by the refusal. The costs *813of tire former trial were paid before tbe new trial was bad, and that, in tbe circumstances, satisfied tbe requirement of tbe statute.
Tbe controlling question was whether or not tbe parents of tbe plaintiff came within tbe provisions of tbe act of February 27, 1866, and it was, therefore, not only proper, but essential, for tbe circuit court to instruct tbe jury upon that phase of tbe case.
Tbe remaining assignment of error which demands our notice involves tbe admission by tbe court, over tbe objection of tbe plaintiff, of tbe evidence of a witness touching certain unsworn statements alleged to have been made by other persons concerning plaintiff’s paternity. Those statements were inadmissible on two grounds: (1) Because one of tbe declarants was not a member of tbe family or so connected with it by affinity as to be competent to speak on tbe question of pedigree, and (2) because neither declarant was shown to be dead.
Pedigre'e declarations constitute an exception to tbe hearsay rule, and only those connected with tbe family by blood or marriage are competent declarants. And evidence of such declaration during tbe lifetime of tbe declarant, of course, is inadmissible. If living, tbe declarant would be subject to examination as any other witness. This subject is satisfactorily treated in Modern Law of Evidence (Obamberlayne), vol. 4, cb. 43, p. 4037 et seq.
For these reasons tbe judgment must be reversed, tbe verdict of tbe jury set aside, and tbe case remanded for a new trial.
Reversed.