permission to sue as paupers, stating the grounds upon which they claimed to be free, and the judge made the orders directed by the statute in such case, and the plaintiffs brought their suit.
Afterwards the defendant filed in Court an answer to the petition, controverting the grounds upon which the plaintiffs claimed to be free. Upon the trial, it seems, the Court, upon the motion of the plaintiffs, struck the answer from the files. The defendant was not prejudiced by this. The law does not contemplate any answer to the petition in such case. The defendant could not have used his own answer as evidence on the trial, no more than the plaintiffs could have introduced their petition as such. The petition had accomplished its purpose when the judge made the orders prayed by it, and which were preliminary to the suit.
6th. The bill of exceptions shows that the jury were permitted to make a personal inspection of the plaintiffs in Court, for the purpose of aiding them in determining whether they belonged to the white or negro race, and perhaps, under the instructions of the Court, whether they were one-fourth negro, more or less. To which the defendant excepted, but he did not make this exception a ground of his motion for a new trial, and consequently waived it, if there was any thing in the objection.
For the errors above indicated, the judgment of the Court below is reversed, and the cause remanded, with instructions to the Court to grant the appellant a new trial.
Absent, Mr. Justice SCOTT.
