Page:Daniel v. Guy (1857).pdf/17

19 Ark.]  1857.]   trial, are that the verdict and judgment were contrary to law and evidence.

We do not propose to pass any opinion upon the weight of the testimony, this being a question for the jury. On the part of the defendant the testimony conduced to prove that the mother of Abby was regarded as a bright mulatto, and held, acted and treated as a slave for many years, perhaps during her whole life. That Abby, from her infancy, until about the year 1841, was likewise held, treated, and acted as a slave.

On the part of the plaintiffs the evidence conduces to prove that from about the year 1841, until a short time before the commencement of this suit, Abby, with her children, was permitted to live to herself, and act as a free woman, and that she and her children were treated in the neighborhood as white persons.

The declarations of the defendant also conduced to produce doubts as to whether she had any negro blood in her or not. There was no competent evidence that she or her children had been legally emancipated. Jackson vs. Bob, 18 Ark. The issue of slavery, as above remarked, turned upon the fact whether the plaintiffs belonged to the white or the negro race. The jury had the benefit of a personal inspection of the plaintiffs. What influence that had upon their verdict, we have no means of determining. If therefore the Court had not erred in its instructions to the jury, we should not, and could not, upon principle, disturb the verdict.

4th. There is nothing in the 4th ground for a new trial; that the Court excluded legal evidence.

The only evidence offered by the defendant, which was excluded by the Court, appears from the bill of exceptions to have been the will of Nathaniel Daniel, in which neither of the plaintiffs, nor Polly, the mother of Abby, seems to be mentioned; nor do we perceive that the contents of this will had any relevancy to the issue.

5th. The fifth ground is equally untenable. The plaintiffs, before they commenced suit, petitioned the Circuit Judge for