#### ALBERT ERWIN and wife Caroline v. L. A. BAILEY and wife Elsie, et als.

(Decided December 23, 1898.)

Depositions — Legitimacy—Marriage of Slaves.

1. Where the notice to take depositions is wrongly entitled, the objection is waived by attendance, and cross-examination of the witnesses.

2. Upon the question of the legitimacy of a child, evidence of the husband’s non-access at tiro time the child was begotten and of his frequent quarrels with his wife in reference to the child’s illegitimacy is admissible. General reputation of illegitimacy is in-admissible,

3. Former slaves continuing their relations of man and wife until the death of one of the parties — were made man and wife under our Statute of 1866, whether they ever went before the Clerk and had a record made of this relation or not children born during such cohabitation are presumed to be legitimate and entitled to the benefit of the laws of inheritance. The presumption may be rebutted.

Civil action for interest in land, tried before Hoke, J., at March Term, 1898, of the Superior Court of Buncombe County.

STATEMENT OF THE CASE.

The land sued for was admitted to have belonged to Csesar Swinton, colored, who died before suit was> brought. Caroline Erwin, the feme plaintiff claimed *629one third of the land as heir at law of Caesar Swinton, and defendants Hester Bailey and one other, two chil- • dren and heirs at law of Caesar Swinton, answered, claiming the entire interest in the land — alleging that Caroline was not the child of Swinton. Plaintiff offered depositions of Susan Cochran and Henry Vanderhost —these depositions had been opened by consent under an agreement that any objection thereto might be made and passed upon at the trial. Defendant objected to reading such depositions on the ground that the notices were entitled “Alfred Erwin and wife v. Ella Bailey et al,” whereas the true title of the cause was, Erwin and wife against L. A. Bailey and Hester Bailey et al. It appeared that defendant had been duly served with a notice entitled, Alfred Erwin and wife v. Ella Bailey et al, giving correct time and place where the depositions were taken, and defendant had filed cross interrogatories at the taking of the same, which were answered, and that no objection to taking them had been made at the time they were-taken. The court overruled the objection and allowed tbe plaintiff to amend the notice, so as to properly entitle the notice, and allowed the depositions to be read. Defendant excepted. These depositions with other evidence of plaintiff tended to show that Swinton and Catherine Swinton, mother of plaintiff and of defendants, were slaves belonging to Prank Johnston; that during the war and before, Caesar and Catherine lived together as man and wife after the manner of slaves, and while they so lived together Catherine gave birth to Hester Bailey and Caroline Erwin, and another child who is also a defendant; that Hester and Caroline were born during slavery; and it did not appear when the last child was born, but at .some period while Csesarand Catherine lived together as *630man and wife; that they were thus living together at the surrender and thereafter moved to .North Carolina where they continued to so live till the death of Catherine in 1868 or later; that they never went before the Clerk or Justice and made acknowledgment of their marriage as required by the Act of 1866, Ch. 40, Sec. 5; that Caesar Swinton bought the land now sued for; that he and Catherine are both dead, and the parties now claim the land as his children and heirs at law.

To prove that plaintiff Caroline was not the child of Caesar, the defendant introduced Mrs. Lelia Coffin, who testified that C-sesar and Catherine were slaves belonging to her father, Frank Johnston, and that Catherine was her mother’s maid who came with the family every summer to Flat Rock, N. C., and that Caesar remained on the rice plantation in South Carolina; that the family came to North Carolina about the first of May and went back to South Carolina about the latter part of November, and Caroline was born about a month after the family had come to Flat Rock, sometime during the war. The witness was further questioned about that date, and stated that • the family were in the habit of coming up the first of May and went back the last of November, and that Caroline was born within a month after the family moved up to Flat Rock for the summer.

The defendants offered to show by this witness that it was the general reputation in her father’s family that Caroline was not the child of Caesar Swinton, but of her father’s coachman. Plaintiff’s objected, objection sustained and defendant excepted. Defendant offered to show by this witness and others that both Caesar and Catherine were heard to say, while they lived together as aforesaid, that Caroline was not the child of Caesar. Plaintiff objected, objection sustained and, defendant *631excepted. Defendant further offered to show that it was the general reputation in Caesar’s family that Caroline was not the child of Caesar. Plaintiff objected. Objection sustained and defendant excepted. Defendant further offered to prove that while Caesar and Catherine were thus living together they had' constant quarrels about Caroline not being Caesar’s child. Plaintiff objected; objection sustained and defendant excepted. Defendant offered evidence to show that Caesar became •dissatisfied with his wife’s being in.the mountains and asked his owner, Prank Johnston, to let him take another wife, and he gave his permission, and Caesar did take another woman and lived with her as his wife, till Catherine went back, and Catherine took on so about it that Caesar gave up the new wife and renewed his relations with Catherine, which continued till the surrender and afterwards, as above set forth. This interruption of Caesar’s relation with Catherine was not during any period when Caroline was begotten or born; nor were any declarations of Caesar or • Catherine, tending to make Caroline illegitimate shown to have been made while their relations were so interrupted. Defendant further offered Dr. Glenn as a witness who testified that the ordinary and natural period of pregnancy was nine months;that children were born at 1 months not infrequently, and lived and became vigorous, though a child born at that period was ordinarily not fully developed at first — ■ the finger-nails were not perfect or some other imperfection; that a child could be born and live at six months, but could not do so without the aid of an incubator, and witness did not think it possible for a child born at six months, to live without such incubator. He did not state between six and seven months, except as shown in the above evidence.

*632The foregoing was the evidence in the case. The court was of opinion and so. instructed the jury that if Caroline was born during the period when Caesar and Catherine, the mother, were living together as man and wife and were so living together at the surrender and moved to North Carolina and lived as man and wife after the surrender till the death of Catherine, the statute declared them man and wife from the beginning of their relations as such, and that in that view there was no competent or sufficient evidence offered to show that Caroline was not Caesar’s child, and if the jury believed the evidence, the issue should be answered for the plaintiff as to one third of the land, as shown in the verdict. Defendant excepted, and moved for a new trial for error in the rulings of the court; first on the depositions, and second on questions of evidence, and third on the charge as given. The motion was overruled. Judgment for plaintiff for one third of the land. Defendant appealed.

Mr. Geo. A. Shuforcl, for appellant.

Messrs. A. S. Barnard and Moore & Moore, contra.

Fubches, J.:

The land in controversy is admitted to have belonged to Caesar Swinton at the time of his death and that it descended to his heirs at law. The defendant Bailey is admitted to be an heir of Caesar. It is also admitted that the other defendants, children of Regina, another daughter of Caesar, who married Jerry Richardson, are heirs of Caesar. But they deny that the plaintiff Caroline Erwin is a child and heir of Caesar.

It appeared from the evidence that Caesar and Catherine were slaves, the property. of Frank Johnston, *633before their emancipation in 1865 ; that said Johnston was a citizen of South Carolina and an owner of a summer residence at Plat Rock, Henderson County, N. C.; that Csesar and Catherine lived together as man and wife after the manner of slaves, and that the plaintiff Caroline Erwin was born during the slavery of Csesar and Catherine and while they lived together as man and wife; that Csesar and Catherine moved to North Carolina after they obtained their freedom, and continued to live together as man and wife, until the death of Csesar about 1868, and that Catherine has also died, since the death of Csesar.

The plaintiff during the trial offered two depositions in evidence for the purpose of sustaining her contention. The depositions were objected to by defendants upon the ground that the notices, upon which the depositions were taken, did not state the title of the case correctly. But it appeared that defendants were present at the taking of the depositions, and cross examined the witnesses. The court overruled these exceptions and defendants excepted. •

The exceptions cannot be sustained. If there was such error as is alleged by defendants, it was waived by their cross examination. They suffered no injury by this error, if it existed, and cannot be heard now to complain.

The defendants contended that Csesar was not the father of the plaintiff Caroline Erwin, and to sustain this contention, offered evidence tending to show that, Catherine, her mother, was the maid of Mrs. Johnston and came with her to Plat Rock about the first of May, and remained until about the last of November, while-Csesar was left'on the rice plantation in South Carolina; and that from the time of the birth of Caroline she *634must have been begotten during the time Catherine was at Flat Rock:, and that she was born about a month after she came to Flat Rock.

It was also in evidence on the part of defendants that Caesar complained that Catherine stayed too much of her time in the mountains of North Carolina and asked his master to allow him to take another wife; that the master granted this permission and he took another wife, but when Catherine came back to South Carolina, Caesar left his new wife and continued to live with Catherine as he had formerly done; and they continued to live together as man and wife until Caesar’s death. But it appeared that plaintiff was not begotten during the time Caesar was living with the other woman as his wife. This evidence was objected to and excluded, and defendants excepted.

The defendants proposed to prove that there was a general reputation that plaintiff was not the child of Caesar. This evidence was objected to and ruled out, and defendants excepted.

We do not think there was any error in the Court’s sustaining plaintiff’s objections, and in overruling the exceptions of defendants to this evidence. The case of Woodward v. Blue, 107 N. C., 407, comes nearer sustaining defendant’s. exceptions than any case called to our attention. And that case does not do so, as we think.

The defendants then offered to prove that Caesar and Catherine had frequent quarrels about Caroline, in which Caesar alleged that she was not his child. This evidence was objected to 'and excluded, and defendants excepted. It seems to us that this exception is sustained by Woodward v. Blue, supra, and this evidence should have been' admitted.

*635Caesar and Catherine having lived together as man and wife while they were slaves, and having continued to live together in this relation until the death of Csesar, about' 1868 this made them man and wife under our statute of 1866, whether they ever went before the Clerk and had a record made of this relation, or not. State v. Whitford, 86 N. C., 636. And children born during such cohabitation are presumed to be legitimate, and entitled to the benefit of the law of inheritance. But this presumption of legitimacy may be rebutted, in the case of children of former slaves who sustained the relation of man and wife, just as it may be as to children born during the existence of other legal marriages. Woodward v. Blue, supra, and authorities there cited.

This being so, we are of the opinion that the evidence tending to show the non-access of Csesar, at the time Caroline must have been begotten, and the evidence of the quarrels that Csesar and Catherine had about the illegitimacy of Caroline, (improperly excluded) niakes a case that should have gone to the jury. It was not a case where the Court could instruct the jury “that if they believed the evidence they should find for the plaintiff. ”

Eor the error in ruling out the testimony, as pointed out above, and the error committed in charging the jury that if they believed the evidence they should find for the plaintiff, there must be a new trial.

New trial.