Covenant.

*Case*49.

#### Page, &c. *vs*Carter.

Error to the Lewis Circuit.

*Practice in Courts of Law. Witnesses.*

Case stated.

Where the defendant’s pleas are altogether affirmative, and he adduces proof sustaining any of his pleas to any extent, he has the right to open and conclude the argument to the jury.

No new trial should be granted by the Court, on the ground that the verdict is contrary to the evidence, unless the finding of the jury is clearly and palpably against the evidence.

*January*13.

Judge Simpson

delivered the opinion of the Court.

The plaintiff, (a free person of color,) having been bound as an apprentice to the defendant, by the County Court of Greenup, brought this suit after the expiration of his term of service, for a breach of the stipulations contained in the indenture.

The defendant filed several pleas, all of which are affirmative, and placed the burthen of proofjon him. He introduced some evidence conducing to sustain one of his pleas only. The Court, notwithstanding it was objected to on the part of the plaintiff, permitted him, by his counsel, to open and conclude the argument before the jury. This is relied upon as erroneous. We are of opinion, however, when none of the defendant’s pleas are of a negative character, as the attitude of the pleadings admits the plaintiff’s cause of action to have existed, and requires the defendant to establish his defence to defeat it, he has a right, upon sustaining his defence to any extent, by the introduction of evidence in support of any one of his pleas, to open and conclude the argument before the jury. He had this right, therefore, in this case, and the Court did not err in permitting him to exercise it.

The jury having found a verdict for the defendant, the Court overruled a motion by the plaintiff for a new trial. .In this, we are of opinion, the Court erred. The verdict is wholly unsustained and unauthorized by the evidence. This Court, it is true, will never disturb a verdict on this ground, where a .new trial has been refused by the Circuit Court, unless it is clearly and palpably wrong. Such, we think, is the character of the verdict in this case.. The evidence was entirely insuffi*193clent to warrant such a finding, and a new trial should have been granted. ,

*Hard and Evans*for plaintiffs; *Beatty*for defendant.

^®|roe^cmulalt' not ’ competent suití^between pers“lgd though called by white person to testify in his negro! asamst a

On the trial had in the Circuit Court, the defendant offered to introduce a man of color, as a witness, to testify in his favor against the plaintiff. The witness was rejected. The counsel for the defendant desires this Court, in the event of a reversal, to pass upon this question. As it may again arise upon another trial, we will notice it at this time.

An act concerning witnesses, passed in 1798, (2 *Stat. Law,*1549,) contains the following enactment, which is still in force, viz: “No negro, mulatto or Indian, shall be admitted to give evidence, but against or between negroes-, mulattoes or Indians.” This seems to confine , . , , such testimony to suits between the persons named, and to proceedings by the Commonwealth against them, Had the Legislature intended it to apply to controversies between them and white persons, by making it admissible against them, it would have been unnecessary to have added the additional words, between negroes, mulattoes or Indians. For, if such testimony be admissible against them in all suits, it would of course, in controversies between themselves, and the latter clause of the section might with propriety, have been omitted.

As the plaintiff in the action could not rely upon such *testimony, if the*defendant had the right to do it, the right would not be reciprocal. As the language of the act does not require such a construction, but rather prohibits it, and as the Legislature should not be presumed to have intended to produce such want of reciprocity upon the trial, the only allowable meaning of the’ act is, that in suits between themselves, they shall be admitted to give evidence; and also in proceedings against them by the Commonwealth, but in no other case.

The judgment is reversed, and cause remanded for a new trial and further proceedings, in conformity with this opinion.