12 Md. 450 | Md. | 1858
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.
Judgment affirmed.