
    CONSTITUTIONAL COURT, COLUMBIA,
    DEC. 1811.
    Susan, a free woman of color, v. David Wells.
    Where the plaintiff’s own witness proves the disqualification of the party to sue, although the evidence may not he pertinent to the issue, the court is bound to notice it. [See Ennas v. Franklin, 2 vol. 398, and Love v. Hadden, ante l.j
    A .slave cannot maintain an action, unless to obtain his freedom, and then he must sue by guardian.
    Motion to set aside a nonsuit, ordered by Smith, J., injhe Court of Common Pleas for Richland district.
    The action was for assault and batiery. Plea, not guilty.
    It came out on the cross-examination of the plaintiff’s witness, that the plaintiff had been a slave, and the witness had heard she was set free by her master: The nonsuit was granted on the ground, that a slave is not entitled to maintain an action, (and here was no proof of manumission,) unless to obtain his freedom, and then he must sue by guardian. The plaintiff proved herself a slave.
    
      Note. As the evidence was not pertinent to the issue, and was not drawn out by the plaintiff herself, quare, whether the court should have permitted it to be drawn out by cross-examination ? I rather think it ought not
    In the case of Ennas v. Franklin, and the case of Love v. Hadden, the evidence came out upon the examination of the plaintiff’s witnesses, and was pertinent evidence to the issue.
    Egan,'for the plaintiff,
    insisted, that although a slave may not be entitled to maintain an action at law, yet in this case, that was not the point in issue, and the evidence given to prove the plaintiff a slave, was irrelevant, and beside the issue. The plaintiff had np opportunity of proving her free condition. The witness ought not to have been cross-examined to that point, because it did not concern the issue. Besides, the evidence was not conclusive, it was only presumptive. The witness only saw her as a slave, in possession of Richard Hampton, and afterwards sold as the property of his estate. He also heard she had been set free.
    W. Ceenshaw, contra.
    
    Cited 1 H. and Múnf. The plaintiff’s color afforded evidence against her, 'prima facie evidence, that she was a slave, in addition to the viva voce evidence of her own witness. Defendant had a right to cross-examine to any point that was availing.
   Grimke, J.,

delivered the opinion of the court. The plaintiff’s own witness proved her to be a slave. The evidence was not pertinent to the issue. Nevertheless it proved the disqualification of the party to sue, and the court was bound to notice it, as in the case of Ennas v. Franklin, where the plaintiff appeared to be an alien from his own shewing, although alienage was not pleaded. *

Motion rejected.  