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