Graham v. Crockett

Hanna, J.

The appellants, as officers, had levied an execution upon a horse, the property of the appellee, who brought suit to recover the same, on the ground that it was exempt from sale, under the three hundred dollar act, of the benefit of which he alleged he had taken the proper steps to avail himself.

There was a trial and finding for the plaintiff; motion for a new trial on the ground that said finding was not sustained by the law and the evidence; motion-overruled; judgment on the finding.

The main point argued by the appellants is as to rulings of the Court in excluding the evidence of two witnesses offered by them, who were not permitted to testify because they were persons of color—mulattoes; the appellee being a negro, and the appellants white persons. It is insisted, that in a suit wherein one party is white, and the other colored, the white party may introduce a colored witness against the other party, but the colored party can not introduce the same or other witnesses of like color against the white party.

'The statute is, that “no person having one-eighth or more of negro blood, shall be permitted to testify as a witness in *120 any cause in which any white person is a party in interest.” Acts 1853, p. 60.

Perhaps the ruling in excluding this evidence does not fairly come in question under the reasons for a new trial, and therefore what follows upon that may be considered as advanced more as suggestion in the further progress of the case than otherwise, as it will have to be reversed on another point.

This statute, by its language, appears to be absolutely imperative as to the exclusion in all cases where a party is white. The reason for the rule would likewise lead to the same result in this, that it would not, in many instances, conduce to the development of the facts, to permit one party to avail himself of the evidence of a large class of witnesses that the Other party would be forbidden to introduce. The construction of the statute contended for by the appellant, if rigidly carried out, might have excluded the plaintiff from cross-examining the witnesses offered, if, by such examination, facts would have been established damaging/to the interests of the appellants.

The evidence, it appears to us, was correctly rejected.

It is argued that the plaintiff was not a householder within the meaning, and entitled to the benefit of, the statute. Tie was shown to be over twenty-one years of age, unmarried, he and his sister living together for several years, each owning some personal property, and each, by their labor, contributing towards their household expenses, he appearing to direct and control affairs. Under these circumstances we are of opinion that a white man would be a householder.

The ruling upon this point was correct.

But the judgment must be reversed. The record professes to contain the evidence in the case. There is nothing showing that the plaintiff demanded to have his propei’ty set offj or furnished a schedule, or proved the value thereof.

W. V. Burns, for the appellants. A. A. Barriekman, for the appellee. Per Curiam.

The judgment is reversed, with costs. Cause remanded for new trial.