¶1By the Court.
¶2deliArering the opinion.
¶3The first exception to the judgment of the Court below, refusing a motion for a new trial is, that the said motion should have been granted on the ground, that upon the trial the Court erred in rejecting the sayings of Downs. For aught that appears, Downs was a competent Avitness, and *492whatever he may have known touching the case, should have been conveyed to the jury under the sanction of an oath, not as hearsay. The evidence was properly rejected. The charge of the Court, as embodied in the statement, is also assigned as error.
¶4We think any rule, applicable to such a case, more stringent than that given to the jury in this charge, would be exceedingly unjust to railroad companies, or other parties engaged in the transportation of passengers. Especially would the rule operate oppressively when, as in this case, the owners of a slave, scarcely at all distinguishable in hair, complexion and feature from a free white person, employed him in a way in which usually only -white persons are employed, viz: as a salesman in their store. Some persons, it appears, dealt with him there, believing him to be a clerk, others mistaking him for a member of the firm, and calling him Mr. Wallace. It is not improbable that the conductor in charge of the train on which this slave escaped, may have seen him so employed in the store of plaintiff, and may thus have been confirmed in the impression made by his appearance that he was of the white race. There is no evidence whatever that any employee of the defendant connived at the escape. To prescribe any more stringent rules in such cases would be to enjoin upon railroad conductors the duty of questioning as to the social status of every white passenger having a dark complexion, and refusing to give him conveyance unless he could prove his descent from Caucasian parents.
¶5We think the Court was right in sustaining this verdict upon the law and the facts.
¶6Let the judgment be affirmed.