Page:Daniel v. Guy (1857).pdf/2

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The fact that the plaintiffs, in a suit for freedom, or their ancestors have been actually held in slavery, or their words and acts in that position, are not conclusive evidence that they were rightfully held in slavery; but if the plaintiffs and their mother were long held as slaves, treated and acted as such, this was prima facie evidence of the right to hold them as slaves.

Where it is stated on the face of the declaration, in a suit for freedom by several, that the plaintiffs are the "mother and her minor children," the defendant would hardly be required to prove the fact so admitted.

An instruction that every presumption, consistent with reason, should be indulged in favor of freedom, is too general and abstract, in a suit for freedom, to be of any practical legal advantage, unless the Court should also tell the jury what presumptions it considered consistent with reason.

If the plaintiff's mother, in a suit for freedom, was always held and treated as a slave, and the plaintiff herself so held, treated and acted, it is prima facie evidence that she and her children are slaves, unless they were emancipated.

Persons skilled in the natural history of the races of men, are competent witnesses to state the distinguishing marks between the negro and the white race, in suits for freedom, when the issue depends upon the question whether the plaintiffs belonged to the one race or the other.

The jury are the judges of the weight of the evidence.

The plaintiffs petitioned the Court for permission to sue as paupers, stating the grounds upon which they claimed to be free; the defendant filed an answer controverting the grounds stated in the petition: the Court, on motion, struck the answer from the files; Held, That the defendant could not have read his answer as evidence on the trial; and there was no error in striking it from the files.

Where an exception is not made one of the grounds of a subsequent motion for a new trial, it is waived.

Appeal from the Circuit Court of Ashley county.

The Hon. THEODORIC F. SORRELS, Circuit Judge.

YELL, for the appellant.

PIKE & CUMMINS, for the appellees.

Mr. Chief Justice ENGLISH delivered the opinion of the Court.

This was a suit for freedom, determined in the Ashley Circuit Court, at the April Term, 1855.

The action was brought against William Daniel, by five persons, who are described in the declaration as "Abby Guy, Elizabeth F. Daniel, Mary Daniel, John Guy, and Malissa