#### WILLIAM BOOKFIELD v. JONATHAN STANTON.

In an action to try the right of a person of color to his freedom, where the question was, whether the maternal grand-mother and mother had, or had not, for a long time been treated and regarded as free, it was Held that a bill of sale for the plaintiff, their descendant, was not material; but that an attachment levied upon the grand-mother was pertinent and proper evidence.

A presumption arises from the fact, of a person’s being black, that he is a slave.

Where a person was born free, no length of illegal and usurped dominion over him, can make him a slave.

Where it was found that the maternal grand-mother and mother of the plaintiff had once been slaves, but for thirty years, and more, had been regarded and treated as free persons, it was Held to be proper for the Court to instruct the jury, that they ought to infer their emancipation in some mode prescribed by law.

Tuespass vi et armis and false imprisonment, tried before Heath, J., at the last Fall Term of Craven Superior Court.

*157The action was brought to. try the right of the plaintiff to his freedom, and it was admitted that he was in the possession and under the control of the defendant, who claimed him as his slave ; and it was admitted, further, that the plaintiff was black. The plaintiff introduced evidence to show, that'for thirty years, and more, prior to his birth, his mother and his maternal grand-mother were known, recognised and admitted to be free persons of color, and had generally passed and acted as such ; that they were generally known as the McKim ne-groes ; that his mother, as a free person of color, removed from the county of Carteret to Ilyde, and lived there as such. She was reputed there to be the wife of a slave, but lived to herself, and was controlled by no one. There was other testimony of this kind, which it was not deemed necessary to state.

The defendant introduced evidence, tending to show, that the mother and maternal grand-mother were claimed and treated as slaves. Among other things, he offered in evidence an attachment in behalf of one Elijah Cannady, against John McKim, issued against him as an inhabitant of another State, returnable to the County Court of Carteret, which was returned levied upon a negro woman, named Beck, and her children, Fan and Oily, at September Term, 1809. The record shows no further proceeding upon this attachment, but on the execution docket of that term, in the column of “ sheriff’s returns,” is the following memorandum : “ Owen Stanton paid the judgment and cost to the plaintiff, and the plaintiff paid me the cost.” This evidence was objected to by the plaintiff, and ruled out by the Court. The defendant excepted. The defendant also offered in evidence a bill of sale for the plaintiff, to show that he had been regarded as a slave, which was rejected by the Court. Defendant again excepted.

The Court charged the jury:

First. That a presumption arose from the plaintiff’s color, (being black,) that he was a slave, and it was a question of fact, for them to say, whether this presumption was met and overcome by the other evidence in the cause.

Secondly. That no length of illegal and usurped dominion *158over the plaintiff, would make him a slave, if he was born free.

Thirdly. That if they found, from the evidence, that the maternal grand-mother and mother of the plaintiff, never were slaves, and that the plaintiff was born free, he was entitled to recover.

Fourthly. That if, from the evidence, they found the maternal grand-mother and the mother, were once slaves, but, for thirty years and more, had passed, were recognised, known and reputed to be free persons of color, they might, and ought to infer, that these persons had been emancipated and set free by some mode recognised by the law. To this charge, the defendant also excepted.

Yerdictfor the plaintiff. Judgment. Appeal by the defendant.

McRae and Hubbard, for plaintiff.

J. W. Bryan, Donnell and Ilaughton, for defendant.

Battle, J.

The exception to the charge of his Honor in the Court below, is certainly without foundation. The instruction given to the jury, upon the effect of the testimony, was clear, explicit, and in accordance with repeated adjudications of this Court. See Jarman v. Humphrey, decided at the present term, ante 28, and the cases therein referred to.

The objection to the bill of sale for the plaintiff, offered by the defendant, to show that he had been regarded and treated as a slave, was properly sustained by the Court. The plaintiff had put his claim to freedom, upon the ground, that he was born free, and to prove that fact, he had offered testimony to show, that his mother and his maternal grand-mother had, for upwards of thirty years prior to his birth, “ been known, recognised and admitted to be free persons of color, and had been generally reputed to be, and had passed and acted as such.’’ If, then, the freedom of the plaintiff’s mother were established at the time of his birth, the bill of sale for him, could not have the effect to prove him to be a slave, and on the contrary, if the mother was not free, it was not insist*159ed that the plaintiff could he so, and the hill of sale was totally immaterial; so that, in either event, it was irrelevant, and, therefore, properly excluded.

¥e regret that we cannot say the same of the attachment against McKim, which was issued in 1809, and levied by the sheriff of Carteret county, upon the plaintiff’s grand-mother, which was offered by the defendant to show, that she was then regarded and treated as a slave. This evidence was offered, in connection with other circumstances, in reply to the testimony of the plaintiff, as to the reputation and treatment of his mother and grand-mother as free persons of color, and was relied upon by the defendant to rebut the presumption arising therefrom. It was an act done in the course of a judicial proceeding, within less than thirty years before the plaintiff’s birth, tending to show that his grand-mother was not, at' that time, regarded as a free person. It was not at all conclusive of that fact, and of itself, may have been very slight evidence of it, but it was a circumstance proper to be considered by the jury, in connection with other circumstances, tending to throw light upon the question then before them; and it was error in the Judge to withhold it from them. The judgment must be reversed, and a venire de novo.

PeR CuRiAM, Judgment reversed.