Bell v. Chambers

STONE, J. We deem it unnecessary in this case to decide, whether or not the transcript from the registry of ownership in the probate court of Mobile, made on the re [664] port and affidavit of Bell, was or was not evidence against the other defendants in the case. The defendant Bell was afterwards introduced by the plaintiff, as a witness against his co-defendants, and testified, that he was the agent of the owners, authorized to make the report and affidavit; and that the persons therein named were at the time the owners of the steamboat J. M. Brown. Hence, whether the evidence, when offered, was or was not admissible against the other defendants, there can be no question of its admissibility after Bell had testified. The error, if any, was cured by his testimony.—Shepherd’s Digest, 568, § 89; Pamph. Acts, 1S53-4, p. 50. [2.] The right of plaintiff to introduce Bell as a witness against his co-defendants, is plainly and explicitly conferred by the statute. — Code, § 2289. It is equally clear that the introduction of this witness by the plaintiff did not constitute him a general witness in the cause. It was not permissible for the defendants to examine him on any matter of defense not called out by the plaintiff in his examination. — Hurter & Hill v. Buford, in manuscript; Eaton v. Kirkman, 35 Ala. 272. [3.] The inquiry; whether or not there had been a change of ownership of the steamboat J. M. Brown, between the time of the registration aforesaid, and the loss of the slave sued for, unless a statement of such change had also been made out, sworn to and filed, as the statute requires, was wholly immaterial. The owners reported on oath to the probate court, must be, as to all liabilities to the public, conclusively regarded as the owners, until they exonerate themselves in the manner pointed out by the statute. — Acts of 1853-4, p. 50. [4.] The circuit court did not err in excluding the imperfectly taken deposition of the witness Moore. [5.] “The defendants offered evidence tending to show» that the man alluded to as being lost from the boat, was a white man in all and every appearance, was recognized and treated as a white man, had hired himself on board as such, slept in the white apartments with the white people, and [665] could not be taken for a slave by any one not knowing the fact.” The court received this evidence for a qualified purpose, namely; “for the purpose of showing that the person alluded to was not a negro, and could not be a slave, and, from the description, was not the identical man claimed by plaintiff; but restricted it to' these purposes.” Several charges were also asked on'this feature of the case, one of which was in the following terms: “That if the boy was in fact a white man in all and every appearance, and would be so received and treated wherever he might go, without suspicion, where he was unknown, and the defendants and their agents had no knowledge or suspicion of his being a slave, they must find for defendants.” This charge was refused. This question is not free from difficulty. The statute imperatively imposes the penalty “on any railroad companies, the master or owner of any steamboat or vessel, in which a slave is transported or .carried, without the written authority'of the owner or person in charge of said slave.” Code, § 1010. Under the well established legal maxim, jpartus sequitur ventrem, a person may be a slave, and yet so far removed from the African stock, as to leave no trace of its blood dr color. On the other hand, it is well settled, that color raises the presumption of status. A white person is presumed to be free ; and, in all communities where African slavery exists, a black person is presumed to be a slave.—Hudgins v. Wright, 1 Hen. & Munf. 139 ; Hook v. Pagee, 2 Munf. 384 ; Gentry v. McMinnis, 3 Dana, 382 ; Gatliffe v. Rose, 8 B. Mon. 632 ; Cobb on Slavery, §§ 68—9; Fox v. Lambron, 3 Halst. 277; Scott v. Williams, 1 Dev. 376; 1 Phil. Ev. (Cow. & Hill’s Notes, 4th ed.) 603, 665, 822. Section 1010 of the Code is highly penal in its terms ; and we do not think the case supposed in the charge copied above, is within the spirit of the statute. To hold it within the statute, might cast on railroads, owners of steamboats, &c., liabilities in cases where the greatest diligence, short of requiring proof of freedom in every case, could not [666] bear them harmless. To lay down ,a rule which leads to results so revolting to all our notions of propriety, is certainly going far beyond anything the legislature ever contemplated. We therefore hold, that the charge copied above should have been given. — 1 Black. Com. 91. In what we have said above, we do not wish to be understood as passing upon the sufficiency of the evidence in this case. That is a question for the jury. Nor do we wish to relieve officers and agents of railroads and vessels from a diligent exercise of watchfulness and scrutiny of persons who seek transportation at their hands. All we now affirm is, that when a case is brought within the facts supposed in the charge we are considering, the spirit of section 1010 of the Code has not been violated. The circuit court erred in not receiving the evidence offered, without restriction; and in not giving the charge asked. [ 6. ] But there was no error in allowing proof of the value of plaintiff’s counsel fees in this action. The statute expressly gives the right to recover all reasonable expenses attending the prosecution of the suit; and counsel fees are certainly expenses attending the prosecution of the suit. — Code, § 1010. The question raised on the right to examine the witness who came in after both sides had announced their testimony closed, need not be decided, as the question will not probably be again presented in its present form. Reversed and remanded.