
    J. A. Talbott, Administrator, vs. Jacob A. Norager.
    On the trial of this case, the appellant asked the court to instruct the jury that if they believed from the evidence that the plaintiff below was a negro, it was prima facie evidence that he was a slave, and could not maintain the action. Held, that was mattep which should have been pleaded in abatement.
    In error from the circuit court of Harrison county; Hon. W. P. Harris, judge.
    The opinion of the court contains the facts of the case.
    
      W. A. Champlin, for plaintiff in error.
    
      R. Seal, for defendant in error.
   Mr. Justice Fisher

delivered the opinion of the court.

This was an action of assumpsit in the circuit court of Harrison county, to which the defendant pleaded the general issue.

Upon the trial, the defendant asked the court to instruct the jury, that if the.y believed from the evidence that the plaintiff was a negro, it was prima facie evidence that he was a slave, and therefore could not maintain the action; which instruction the court refused to give.

This was matter which should have been pleaded in abatement of the action, and could not be given in evidence under the general issue.

The court, therefore, committed no error.

Judgment affirmed.  