
    J. S. D. Jones vs. Silvester Jones.
    
      Free Negro — Sum. Pro. — Practice—Evidence.
    Where in an action within the sum. pro. jurisdiction by one free negro against another, the defendant is served with interrogatories, he may answer in writing on oath before the Clerk, and his answer thus sworn to may be read in Court.
    Where the attesting witness to a note is a free negro, mere proof of his handwriting is insufficient to prove the note.
    BEFORE GLOVER, J., AT BEAUFORT, SPRING TERM, 1857.
    The plaintiff served interrogatories in this case, and when the defendant appeared before the Clerk of the Court to swear to his answer, the Clerk refused to swear him, on the ground that he was a free person of color. His Honor sustained the clerk in this proceeding, and the defendant was not allowed to answer. - The note being signed by making a mark in the preseiice of a colored witness, the plaintiff offered to prove his case, by producing a witness to prove the handwriting of the subscribing witness to the note; to this, defendant’s attorney objected on the ground, that the subscribing witness to the note was within the jurisdiction, and that he, himself, should have been produced to prove the execution of the note. His. Honor heard the witness, and decided for the plaintiff.
    The defendant appealed on the grounds:
    1. That his Honor erred in refusing to allow defendant to answer the interrogatories served upon him.
    2. That his Honor erred in allowing proof of the handwriting of a subscribing witness; said subscribing witness being within the jurisdiction of the Court.
    
      ■ 3. That allowing proof of the handwriting of a free person of color, is virtually making said free person of color a witness in this Court, which should not be allowed.
    
      ■Tison, for appellant.
    1. Party in sum. pro., served with interrogatories, may either give his answer in writing sworn to before the clerk', or ore terms in open Court; 3íth Bule of Court, Miller’s Comp. 38. '2. Free negroes may make all necessary affidavits in collateral matters, in cases in the superior court's, in which they may be parties; Qlenn vs. Lopez, Harp. 109. 3. Subscribing witness to an instrument of writing, must be produced to prove its execution if within the jurisdiction of the court; Trammel vs. Bobert, 1 McM. 307 ; Townsend vs. Covington, 3 McM. 219. 4. Proof of handwriting of subscribing witness not sufficient; the signature of the maker must be proved; Gervais vs. Beard, 2 Brev. 37; Paisley vs. Snipes, 2 Brev. 200. 5. Free person of color not a competent witness to any instrument of writing, nor in any case in Courts of Becord. Evidence of signature of free person of color as witness is inadmissible; the principal evidence being excluded, that which is secondary cannot be admitted; Groining vs. Devana, 2 Bail. 122.
    
      Fielding, contra.
    
      Youmans, in reply.
   The opinion of the court was delivered by

Withers, J.

Hpon the hearing of a summary process, founded upon a note executed by the instrumentality of a mark by the defendant, who was a free negro, and the execution purporting to have been attested by another free negro, the plaintiff (also a free negro, it is understood,) sought to make proof of his case by answers to interrogatories served on the defendant. The Clerk of the Court refused to swear the defendant to his answers, and in this was sustained by the presiding judge. Next, the plaintiff offered evidence of the genuineness of the signature of the attesting witness; and such evidence was received, 'and upon that alone a decree was rendered for the plaintiff. The ruling below is challenged in both particulars.

First. Should the Clerk have'administered an oath to the defendant when he offered to swear to his answers ?

The incompetency of the free negro, as a witness in genera], is not derivable from anything found in the common law of England. -That law was never adopted in all its length and "breadth in South Carolina. By the Act of 1712, it was adopted in so far as it should not be “inconsistent with the particular constitutions, customs, and laws of this province.” Eor matter criminal, and for discipline in favor of peace and order, a special jurisdiction has long been in existence for free negroes as well as slaves. The status of both, in the legal and social points of view, is enduringly fixed to a grade of inferiority. Hence the free negro is not heard as witness on "an issue between parties of the white race; nor is a case known in which, (where objection was made in proper time, vide State vs. Scott, 1 Bailey, 270,) he has ever been examined in open Court, as witness in a cause, either pending between others, or one in which he was a party. Such disqualification may well be ranked as springing from our particular constitutions, customs and laws. But it is quite settled, that an assault and battery by a white man on a free negro is properly to be tried in the Court of General Sessions; that a free negro may acquire, hold and transmit, by deed or by will, property, whether real or personal; that he may sue and be sued in relation to it in the Common Pleas jurisdiction; and the like is true touching his contracts. It is also settled, that such a person is entitled to the benefit of the laws for the relief of insolvent debtors, and when seeking a discharge under them, he must be sworn to the truth of his schedule, Glenn vs. Lopez, Harper, 105. If a free negro, being party in an issue respecting realty, had occasion to offer a copy grant in lieu of the original, or in any issue to move for a continuance, how would his right to make the oath necessary in such and such like cases be denied? The practice adopted in this case has often been likened to the bill for discovery in the equity jurisdiction. If the answer of a party had been obtained in that forum, at the instance of an adversary, how could it be excluded .from any Court in a case where such evidence is receivable, upon the ground merely that it was the answer of a free negro! When a party calls a witness, he implies, in that act, that he offers a competent and credible witness to the Court. It would be too late after verdict for him against whom he is called to object for incompetence, even though he were a free negro and had been examined, vide State vs. Richard Scott, cited above, from 1 Bailey, 270. In the present instance nobody objected to the oath of the defendant but the Clerk, for the plaintiff called for the evidence and the defendant was willing to furnish the deposition. The plaintiff having waived any objection and the defendant being willing to swear to his answers, why should that be denied any more than in the ease of the insolvent debtor, or in the other examples suggested ? The court, which will never allow itself to be prostituted, is not committed by hearing such evidence in such circumstances as this case presents; for if the party, a free negro, in sum.pro. be tendered or offers himself, .to be examined in open Court, the Court can and will then, as in sundry other cases, take action mero motu: as it will, in any stage of a cause send a free negro improperly brought within its jurisdiction to the Magistrate’s Court, vide Scott's case, ubi supra, and State vs. Hays, 1 Bailey, 275.

We are of opinion, therefore, that the Clerk ought to have sworn Silvester Jones to his answers, and then that his deposition should have been heard.

Second. Was the execution of the'note adequately proved by the evidence of tbe bandwriting of tbe attesting witness? We think not'. Tbe witness could not have been called; not by reason of any intermediate disability supervening, but originally by reason of status; a fortiori, tbe proof of bis bandwriting, merely, was more objectionable. But if be bad been competent to attest and to' prove and bad died, such evidence as was offered would be insufficient. Other evidence of tbe defendant’s signature would have been necessary still. For reason and authority to this point, see tbe opinion in Russell vs. Tunno, Pinckney & Co., 11 Rich. 303.

Tbe motion for a new trial is consequently granted.

O’Neall, Wardlaw and Whitner, JJ., concurred.

Glover, J.,

dissenting. I concur in so much of this opinion as bolds, tbat the evidence was insufficient to prove tbe making of the note; but I do not concur with the majority of the Court tbat the Circuit Judge erred in refusing to allow tbe defendant to answer the* interrogatories. Tbe thirty-fourth rule of Court directs, tbat if tbe plaintiff or defendant is served with interrogatories, be may either give bis answer in writing, sworn to before tbe Clerk, or ore tenus in open Court. Tbe language of tbe rule sanctions the practice tbat has been adopted under it, which is, to permit tbe party to elect in which way be will answer. It is said that be may be compelled by tbe Court to answer in.writing; but this is neither the letter of tbe rule nor according to the practice under it. Conceding the authority of the Court to compel an answer in writing, tbe objection to tbe competency of tbe witness is not thereby removed. Tbe question is not, bow shall a witness answer, but, is be competent. If bis answers are inadmissible ore tenus, they are inadmissible in writing. What reason, except incompetencv arising from his status, can be given for his exclusion from the stand which will not apply to free white persons. I know that there are exceptions to the well-established rule, that free negroes are incompetent witnesses in this Court and that their evidence is inadmissible; but these exceptions depend upon absolute and indispensable necessity. They enjoy under our laws the rights of property and protection and may make all necessary affidavits in collateral matters, in vindication of those rights. They must take the oath prescribed by the Insolvent Debtors’ Act, and may be examined on oath by creditors, because it arises from an actual necessity created by the Act and not by the party and is in favorem libertatis. In the cáse of Glenn vs. Lopez, Harper 105, the Court says, “It was supposed that the same policy which excludes persons of color, from giving evidence would operate so as to exclude them- from taking an oath in any case. As a matter óf policy it was always within the control of the Legislature, and taking the oath prescribed by' the Act is made a condition sine qua non to entitle him to its benefits.” The Court concedes that not only the rule of exclusion but that the exceptions to it are under the control of the Legislature alone ; and all the cases that allow the exceptions put them upon the ground of absolute necessity, created by law and not by the party. The witness was excluded in White vs. Helmes, 1 McC. 430, because it was without precedent and against the policy of the State, and the Court sustaining the decision on circuit, observes, “ There is no instance in which a negro has been permitted to give evidence except in cases of absolute and indispensable necessity — when we consider the degraded state in which they are placed by the laws of the State and the ignorance in which most of them are reared, it would be unreasonable as well as impolitic to lay it down as a general rule that they are competent witnesses.” Ten years- after-wards (1831) the same question arose on an appeal from Recorder Prioleau, (Groning vs. Davana, 2 Bail. 192,) and Ms judgment was concurred in by the whole Court — Justices Johnson, O’Neall and 'Harper. Referring to White vs. Helmes, the Recorder says, “.This decision, I think, recognizes the principle that negroes are incompetent witnesses in all cases except where the necessity is absolute, and it follows, that he who offers such a witness must be prepared to bring himself within the exception. It is not enough merely to allege that it is a case of necessity, but it must be made to appear to the Court to be so. It must not be a necessity created by the .act of the party offering the witness, but one beyond his control and springing from the transaction itself. Now the evidence here is all created by the parties themselves. The plaintiff, a black, sells goods to the defendant, a black, on credit, and employs a black clerk to make the entries in his books. If by this means he is compelled to offer the black clerk as a witness, he himself created the necessity. He might have sold the goods and called in a white to witness the transaction. A black is excluded because of his degraded state in society and his ignorance — in other words, because from his moral and intellectual debasement he is unworthy of all credit. The rank of .the litigant parties can make no alteration in his condition. If his testimony would be worthless between whites it would be equally so between blacks, for let the rank of the plaintiff and- defendant be what they may, it is .the sacred duty of the Court to dispense to them the stream of justice in perfect purity and with impartiality.” ’

By a change of names this and the principal cáse are the same. In both the parties litigant are free colored persons and a colored witness is offered to establish a debt; in the first, he wras the clerk who made the original entries, and in the last the witness to the signature of the maker of a promissory note; the necessity is not more absolute in the one case than in .the other, and in both is created by the parties themselves. The decision now pronounced overrules the case of Groning vs. Davana and those on which it depends.

It has also been said, that where a plaintiff or defendant propounds interrogatories to either, though he be incompetent, he must answer. But the incompetency of a free colored person does not depend upon his interest which may be released, or upon his degradation from crime or established mendacity, which may be waived by the parties; but it arises from his status in society and his incompetency rests on grounds of public policy which the Legislature alone can waive. Even in the inferior Courts, where his evidence is received, no oath is administered to enforce the obligation imposed by it. If the witness is competent to answer interrogatories in the summary jurisdiction, when no objection is interposed, he is equally so in the higher jurisdiction and to this extent the ruling in this cause goes. It is certainly the first time in South Carolina that the right of a free negro to appear on the witness’ stand in the superior Courts and to give evidence on the trial of causes has been recognized.

It may be thought wise and just by some to elevate his status and to confer upon him other and higher rights and privileges. If this be a case new in its principle the Legislature alone can interpose to change the law. It is only in a case new in the instance that courts assume the power by the application of a recognized principle. If I believed that public policy did no longer require his exclusion, I am unwilling to change the law except by Legislative enactment.

Motion granted.  