attorney called to the stand, a negrò, as a witness in behalf of the State. The counsel for the prisoner objected to his admission, on the ground of incompeten cy, under the statute regulating black and mulatto persons. The prisoner ap peared, upon inspection and of such opinion was the court, to be of a shade of color between the mulatto and white. The court overruled the objection, and the witness was admitted. To this opinion of the court, the counsel for the prisoner excepted; and the verdict and judgment being against her, she brought her writ of error.

Van Matre, for plaintiff in error. Wade, contra.

By the COURT.

The witness was improperly admitted. The statue compels courts of justice to reject black and mulatto witnesses, where a white person is a party. The statute is one which a court is called upon to execute, with reluctance, yet where a case is presented, the court has no alternative but to yield to the expression of the legislative will. Three descriptions of persons are designated, by name, in the statute; white, black, and mulatto-and these three are well known, by the same terms, in common life: but we doubt whether we can refine upon these obvious distinctions, or whether good policy, or good sense, requires us to raise the necessity for further discrimination. We are unable to set out any other plain and obvious line or mark, betweenn the different races. Colour alone is insufficient. We believe a man, of a race nearer white than a witness, and should partake in the privileges of

mulatto, is admissible as a whites.

We are of opinion, that a party of such a blood, entitled to the privileges of whites, partly because we are unwilling to extend the disabilities of the statute further than its letter requires, and partly from the difficulty of defining and of ascertaining the degree of duskiness which renders a person liable to such dis

abilities.

Judgment reversed.

COLVIN v. CARTER.

Where A. obtains credit from B. upon an agreement to pay and take up certain notes made by B. and endorsed by C. as they become due and fail to do so; B. may recover the amount due, and A. cannot set up his liability as an off set,

Carter brought an action of assumpsit in the court below, against Colvin, and declared upon the common counts, for goods sold and delivered, and upon a special contract. Colvin pleaded the general issue, with notice of offset.

On the trial, Carter produced and proved, a written agreement, dated June 16th, 1828, signed by Colvin, in which Colvin, in consideration of a bill of merchandize that day purchased of Carter, amounting to one thousand seven hundred and thirty-two dollars and ninety-eight cents, agreed to pay for Carter

certain notes of hand, to the amount of one thousand seven hundred and five dollars and fifteen cents, signed by Carter and payable to and endorsed by Colvin, as they might severally fall due, and also to release Carter from all liability on said notes; which notes were then held by several individuals, and had all become due before the commencement of the present suit.

The plaintiff also proved an account for other goods, to the amount of ninety dollars and eighty-five cents, and there rested his case, without proving that he had paid any part of the notes mentioned in said agreement.

The defendant then proved that he had paid a part of the notes, amounting to four hundred and fifty-five dollars and fifteen cents; and that another part had been sued, and judgments rendered both against Carter and Colvin, and upon which both were liable; and that the residue of the notes were unpaid, and upon which both Carter and Colvin were liable.

The defendant also proved, that previous to the execution of said agreement, he had paid to several persons the sum of two hundred and fifty dollars, in satisfaction of debts due by Carter, and for the payment of which Colvin was liable, as security.

Upon this statement of facts, the defendant moved the court to instruct the jury, that Carter was entitled only to nominal damages, under the agreement, unless he proved that he had paid the notes, or that Colvin was released from all liability thereon; but the court refused this instruction, and charged the jury that Carter was entitled to recover the full amount of the consideration of said agreement, deducting the amount of the notes paid by Colvin, notwithstanding Colvin might be liable upon the notes unpaid.

The court also instructed the jury, at the request of Carter, that the agree ment in relation to the notes was presumptive evidence of a settlement of all previous accounts between the parties, but was not conclusive, and the jury must judge from all the circumstances attending the transaction, whether the two hundred and fifty dollars paid by Colvin, previous to the agreement, had been refunded by Carter.

To these opinions of the court, the defendant, Colvin excepted. The jury returned a verdict of one thousand four hundred and nine dollars and eightynine cents in favor of Carter, and judgment having been rendered thereon, Colvin prosecuted his writ of error.

Storer and Fox, for plaintiff in error.

Opinion of the Court, by Judge COLLET.

Caswell and Star, contra.

It is contended for Colvin, that the opinions of the court of common pleas, contained in the bill of exceptions are erroneous. It is the opinion of this court, that the court of common pleas did not err, when it refused to instruct the jury that Carter was entitled to nominal damages only. The goods were sold by Carter to Colvin, on a limited credit, limited to the time that the notes of Carter became due, which Colvin had agreed to pay. The clause in the agree ment, that Colvin should release Carter from all liability on the notes, does not extend the time of payment beyond the times when the notes became due, or authorise Colvin to retain the money, the price of the goods, after the notes be came due.

When an endorser pays to the holder the amount due from the maker of a promissary note, the maker is still liable on the notes to the endorser. This was the reason of this agreement of Colvin to release Carter. It was an agreement, that as he paid an took back the notes of Carter, that he would can. cel them. It did not extend the times of the payment before fixed, but was limited by those times.

Colvin, by the contract, was authorised to retain the price of the goods, until the notes of Carter, which he had endorsed, become due, and then to pay for the goods by discharging the notes, and thereby to prevent himself from being made liable, as endorser, but he was not authorized, to retain the price of the goods for so long a period.

The endorser of a note due, and unpaid, cannot off-set the amount due on the note, against a claim of the maker, or successfully urge it as a defence against a suit brought by the maker.

The violation of this contract, left in the hands of various persons, several notes of Carter, due and unpaid, by which his credit would be injured, and he would be liable to several suits. As Carter had reason, more than in ordinary cases, to be desirous that Colvin should punctually perform his contract, so he had greater reason, than, in ordinary cases, to rely on Colvin's punctuality, in the performance of it, as when he paid his debt to Carter, according to his contract, he would, at the same time, have discharged his own liability to the holders of Carter's notes. It would seem that Carter was entitled to increased, rather than nominal damages. As to the opinion of the court of common pleas, as expressed in their charge to the jury, in relation to the off-set of Colvin, the charge must all be taken together, and in the sense in which the jury would understand it. It would then apply only to the two hundred and fifty dollars, this being the only claim offered in evidence, as having existed prior in date to the written contract. When so taken, it is that the agreement was presumptive ev idence, but not conclusive, of the settlement of the two hundred and fifty dollars; and that the jury, in determining whether Carter had paid the hundred and fifty dollars to Colvin, would take the making of the agreement, and all the circumstances attending the transaction, into consideration.

When Carter was selling to Colvin, on credit, more than one thousand seven hundred dollars worth of goods, and authorizing him to pay, nearly the whole of the price of the goods, in discharge of the notes of Carter, which were not then due, and on which Colvin was indorser, it does seem reasonable to conclude, that Colvin would have remembered and mentioned to Carter, that Carter then owed him two hundred and fifty dollars, for payments he had before made, on the notes of Carter, which he had indorsed, and that it would then have been paid by Carter. Why should it not have been done? It would have been better for Colvin, at once, to have had the credit, and as well for Carter. Carter's obligation to pay, as soon as he knew of it, was great. His friend had had to advance his money for him. The presumption of payment is not as great, as that the first quarter's rent is paid, from the landlord's receipt for the second quarter's rent; but it is such as would have weight with any sensible man, who had to determine whether the two hundred and fifty dollars had, or had not been paid, and ought therefore go to the jury as presumptive evidence. The court do not presume there is error in this charge. The judgment must, therefore, be affirmed with costs.

BIGALOW, ET UX. v. BARR, ET AL.

The acquiescence of a female devisec in the construction of the will, does not corclude her. This was a bill in chancery to establish an equitable life estate in the complainant, Maria Bigalow; and was reserved from the county of Hamilton.

William Barr, sen. died in May, 1816, having made his last will, devising one hundred and sixty acres of land near Cincinnati, to the defendants, Will am Barr, Jaimes Keys, and John B. Enness, his executors, upon the following

trusts:

"First: For the use of my son, John M. Barr, during his natural life, but nevertheless to permit and suffer my son, John M. Barr, to hold, use, occupy, possess, and enjoy the same, and to receive and take the rents and profits tercof, during his natural life. And in case my said son, John M. Parr, should die, leaving a legitimate child, or children, then also in trust, for Maria Pare, wife of the said John M. Barr, in case she survive him during her naturai 173, for the purpose of maintaining herself, and her child, or children, and educating the said children: but nevertheless to permit and suffer the suid Maila Barr to hold, use, occupy, and enjoy the said farın, and to receive the profits during her natural life. And upon the decease of the said Maria Baer, wile of the sid John M. Barr, in case she survive, if not, then upon the deccase of Jela M. Barr, I do further give and devise the remainder of my estate, in said l him or her, or his or her heirs forever. But if he have two or m then I give and devise, the said farin unto such children, and their ' equally divided between them. But should my son, John M. Parr, due widkend having any issue of his body, then, and in that case, I give and devise the remainder of my estate in said farm, unto my s id sons-in-law, William Dear, James Keys, and John B. Enness, and their heirs forever. And if the present wife of my son John M. Barr, should survive him, dying without bracing any legitimate issue, then I direct my said sons-in-law, their executors and adm":10. trators, to pay or cause to be paid, unto her yearly, and every year, during her widowhood, the sum of two hundred dollars. And if during her widow.oad she should again be lawfully married, then I further direct my said sons-in-law to pay her the sum of one thousand dollars, &c."

To be

John M. Barr died in August, 1820, leaving his wife Maria, and one child. In November, 1821, the child died, leaving the said Maria, wife of John M. Barr, who intermarried with the complainant, John Bigelow, in October, 1824. In the lifetime of John M. Barr, the defendant, William Earr, at his request leased the premises for several years. The tenant, in possession, in the year 1827, attorned to the complainants. The defendants prosecuted a suit of for cible detainer, and recovered judgment, which is still pending on error. The bill charged that the defendunt, William Barr, claims the premises, by virtue of some pretended agreement, to accept the two hundred dollars annuity, instead of the life estate of the complainant, Maria Bigelow, that she never made such agreement, and prays for an injunction, account, &c.

The defendant, William Barr, admitted in his answer, the material facts charged in the bill; but set up a verbal agreement made, on the death of the child of John M. Barr, between the complainant Maria, then unmarried, and the defendant, by which she agreed to receive the arnuity of two hundred dollars per annum, during her widowhood, and one thousand dollars upon her rematriege, in satis^ ction of her claims under the will. That under this agree. nent, he, in his own behalf, and in Lehalf of the other executors, took posses. sion of the premises, as their own property, in the latter part of the year 1821, with the consent and approbation of the complainant, Maria. That the defen. dant, Keys, being in failing circumstances, on the 28th of December, 1821, gave the said Maria a mortgage upon the premises, to secure the payment of his third of the anny, and of the one thousand dollars, upon her re-marriage: that she accepted this mortgage, and in 1826, the complainants prosecuted this mortgage, and recovered a judgment thereon. That the annuity of two hundred dollars was paid during the widowl.ood of the complainant, Maria, and also since her intera riage, principally in rents which were received by the complainants, under the said agreement, until 15. The defendants, Keys and Enness, are embarrassed; but he, William Earr, is willing, and offers to pay up the thousand dollars, upon a proper release being made by the complain.

ants.

That he has kept no accurate account of the rents, or moneys paid to the complainants, as the tenants often paid the rents directly to the complainants; but alleges that the complainants were fully paid to the amount of the annuity, until the year 1826, or 1827. That in 1827, the complainants, by collusion, procured the tenants in possession, to attorn to them, &c.

The testimony taken in the case, showed that the child of John M. Barr, and of the complainant, Maria, died, in November, 182, and did not establish an independent parol agreement, as alleged in the answer. It only made out an acquiescence of the complainant, Maria, in the construction put upon the will by her three brothers-in-law.

Hammond, for complainant. N. Wright, contra.

Opinion of the Court ly Judge BRUSH.

The objection of the bill is to establish the right of the wife, Maria Bigelow, to the use and possession of a farm of one hundred and sixty acres of land, ly. ing in Hamilton county, by virtue of the will of William Barr, Sen. deceased for and during her natural life; and to enjoin further proceeding at law upon a judgment in forcible detainer obtained against the tenants of complainants. The clause in the will relied upon reads thus: "And in case my said son, John M. Barr, should die, leaving a legitimate child or children, then also in trust for Maria Barr, wife of the said John M. Barr, in case she survive him, during her natural life, for the purpose of maintaining herself and the child or children, and educating the said children; but nevertheless to permit and suffer the said Maria Barr, wife of the said John M. Barr, to hold, use, occupy and enjoy the said farm, and to receive and take the rents and profits thereof during her nat ural life." The said John M. Barr, former husband of complainant, Maria, died August, 1820, leaving said Maria and a daughter the legitimate issue of