Hughes v. Jackson

Le Grand, C. J., delivered the opinion of this court. This case comes before this court on an appeal from the decision of the circuit court overruling a motion in arrest of judgment. The principal question which underlies the case is, whether a negro can maintain an action in this State, without first averring in his pleadings, and establishing by proof, his freedom; it being contended, that the presumption of slavery arising from color, applies in every case, and is not confined to those originating in a petition for freedom. There are other matters alluded to and insisted upon by the counsel for the appellant, but they are of minor importance. The first is, that the amended declaration does not conform to the writ. An examination of the pleadings will show this to be simply error in point of fact. It is true, however, that the declaration which was filed in the first instance did not agree with the writ, but this oversight was corrected by filing another declaration to which the defendant pleaded, and on which issue was joined and the case was tried. The writ was issued on the 10th daj' of March 1851; on the 18th day of October 1853, (there having been continuances,) the following agreement was entered into and made a part of the record: — “Continued upon the following agreement, to be struck off at the next April term of this court if not tried, and judgment to defendants for costs.” Subsequently the plaintiff had leave to amend, and did amend his declaration, and to this amended declaration the defendant pleaded, and the case was carried on to judgment, without any notice being taken of the agreement to which we have referred. [463] This we consider a waiver, with the concurrence of the court, of ali advantage conferred upon the defendant by the agreement. Had this not been the case the judgment for costs would have been entered. The subsequent proceedings are only reconcilable on the hypothesis of a waiver of the agreement. But, inasmuch as a motion in arrest of judgment brings up the whole record, it is contended, that the court ought to have granted a new trial. The court overruled, as its opinion shows, the motion for a new trial, and refused to consider the reasons filed as of the 13th of June 1856, because these reasons were not filed within the time specified by the rules of court. The 22nd rule of the court is as follows: “Ordered, that all motions in arrest of judgment and for a new trial shall be made, and reasons filed within four days next after trial, if the court shall continue so long, if not then, during the sitting of the court.” Where a court has established rules for its government, and that, of suitors, there exists no discretion in the court to dispense at pleasure with their rules, or to innovate on established practice. Wall’s Ex'rs, vs. Wall, 2 H. & G., 79. Benson vs. Davis, 6 H. & J., 272. Abercombie vs. Riddle, 3 Md. Ch. Dec., 320. This being so, then the appellant has nothing to complain of, or which this court can correct on this appeal, and as a consequence, the judgment must bo affirmed. But the question to which we adverted in the commencement of this opinion, and which arises on the motion in arrest, is one of great practical importance, and we will decide it so as to remove all doubt in regard to it for the future. We know of but two cases in which, in a court of law in this State, a negro suffers a disqualification because of the presumption arising from his color. The one is, where he is adduced as a witness in a case in which any while person is interested. Our act of Assembly of 1846, ch. 27, renders him incompetent asa witness in any case in which a white person is interested; the old act of 1717, ch 13, confined it to cases in which a Christian white person was concerned. The other case is, where the question is freedom vel non; there his color raises a presumption against him, and casts upon him the onus of proof of his freedom. From the earliest history of the colony, free negroes [464] have been allowed to sue in our courts and to hold property, both real and personal, and at one time, they having the necessary qualifications, were permitted to exercise the elective franchise. To deny to them the right of suing and being sued, would be in point of fact to deprive them of the means of defending their possessions, and this, too, without subserving any good purpose to the rest of the community. Neither the policy of our law, nor the well-being of this part of our population, demands the principle of exclusion contended for by the appellant, on the contrary, they are both opposed to it, and so long as free negroes remain in our midst a wholesome system induces incentives to thrift and respectability, and none more effective could be suggested than the protection, of their earnings. The words, free negro, are not essential in the averments of the pleadings except in the case of a petition for freedom; in all others the word “negro” is sufficiently full in its description; it notifies the adversary party of the fact of color, and thus affords him an opportunity to show the condition of slavery, if such be the case, by pleading that disability. (Decided June 15th, 1858.) Judgment affirmed.