Lumpkin, J.
(After stating the foregoing facts.)
[674] 1. The presiding judge instructed the jury: “You will first inquire as to the birth and legitimacy of the plaintiff, W. H. Price. If he was not the son of Jack Price, — the burden is upon him, I should state, to establish his right to recover, and to establish all the facts necessary to make up his right to recover, by a preponderance of evidence.” Error was assigned on this charge. There was no error in it. The plaintiff first alleged that he was one of two heirs left by Jack Price. By amendment he Alleged that he was the only heir. The answer did not admit that he was an heir at law. The evidence showed that the parties were persons of color, Jack Price and the mother of the plaintiff and the mother of McPrice having been slaves; that introduced by the plaintiff tending to show that he was born in 1861 or 1862, and that McPriee was born about six months later. It seems that a conveyance was made to Jack Price in 1865, so that he was then in life. During the existence of slavery in this State, slave marriages were not binding, and their offspring was not legitimate. Their marital status and the legitimacy of their children was one dependent upon statutory enactment. On March 9, 1866, an act was passed which declared that “persons of color, now living together as husband and wife, are hereby declared to sustain that legal relation to each other, unless the man shall have two or more reputed wives, or a woman two or more reputed husbands. In such event, the man, immediately after the passage of this act by the General Assembly, shall select one of his reputed wives, with her consent; or the woman one of her reputed husbands, with his consent; and the ceremony of marriage between these two shall be ¡Derformed. If such man thus living with more than one woman, or such woman living with more than one man, shall fail or refuse to compty with the provisions of this section, he or she shall be prosecuted for the offense of fornication, or fornication or adultery, or fornication and adultery, and punished accordingly.” Acts 1865-1866, p. 240. On the same day another act was approved which declared, that among persons of color the parent should be required to maintain his or her children, whether legitimate or illegitimate; that children should be subject to the same obligations in relation to their parents as those which existed in relation to white persons; and “that every colored child heretofore born is declared to be the legitimate child of his mother, and also of his colored father, if acknowledged by such [675] father.” Acts 1865-1866, p. 240. On December 12, 1866, another act was approved. This act contained the following provision: "Section third of the above-recited act [that is the act of March 9, 1866] shall be so construed as to apply only to such children as-were born within what was regarded as a state of wedlock, or when the parents were living together as husband and wife.” Acts 1866, p. 156. Another act, approved December 13, 1866, declared valid marriages theretofore celebrated by ordained colored ministers of the gospel between freedmen and freedwomen, and authorized colored ministers of the gospel to celebrate marriages between freedmen and freedwomen, or persons of African descent only. These acts are now codified in sections 2178 and'2180 of the Civil Code of 1910. The latter section reads as follows: "Every colored child born before the ninth day of March, 1866, is hereby declared to be the legitimate child of his mother; but such child is the legitimate child of his colored father only when born within what was regarded as a state of wedlock, or when the parents were living together as husband and wife.”
Where, as in the present case, the plaintiff, a colored person born in this State prior to Mareh 9, 1866, claimed to inherit from his father as the legitimate child of the latter, and the fact of his being an heir was put in issue by the pleadings, the burden was on him to show that he was the legitimate son of his father. The provision of the act of that date in regard to the recognition of a colored child by its father was omitted from the act of December 12, 1866; and in the case at bar the father did not die between those dates after a recognition of the plaintiff as his child. Hence the decision in White v. Ross, 40 Ga. 339, does not apply.
2. Exception was taken to the charge which was substantially in accord with section 2180 of the Civil Code. The plaintiff contended that if the father and mother recognized their relation as that of husband and wife prior to March 9, 1866, and the father acknowledged the child as his, the child would be the legitimate child of both parents, whether the state in which the father and mother lived was recognized by any one else as a state of wedlock or not. But this contention is not in accord with the statute. The expression, "what was regarded as a state of wedlock,” does not mean so regarded merely by the man and woman.
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Lumpkin, J.
(After stating the foregoing facts.)
[674] 1. The presiding judge instructed the jury: “You will first inquire as to the birth and legitimacy of the plaintiff, W. H. Price. If he was not the son of Jack Price, — the burden is upon him, I should state, to establish his right to recover, and to establish all the facts necessary to make up his right to recover, by a preponderance of evidence.” Error was assigned on this charge. There was no error in it. The plaintiff first alleged that he was one of two heirs left by Jack Price. By amendment he Alleged that he was the only heir. The answer did not admit that he was an heir at law. The evidence showed that the parties were persons of color, Jack Price and the mother of the plaintiff and the mother of McPrice having been slaves; that introduced by the plaintiff tending to show that he was born in 1861 or 1862, and that McPriee was born about six months later. It seems that a conveyance was made to Jack Price in 1865, so that he was then in life. During the existence of slavery in this State, slave marriages were not binding, and their offspring was not legitimate. Their marital status and the legitimacy of their children was one dependent upon statutory enactment. On March 9, 1866, an act was passed which declared that “persons of color, now living together as husband and wife, are hereby declared to sustain that legal relation to each other, unless the man shall have two or more reputed wives, or a woman two or more reputed husbands. In such event, the man, immediately after the passage of this act by the General Assembly, shall select one of his reputed wives, with her consent; or the woman one of her reputed husbands, with his consent; and the ceremony of marriage between these two shall be ¡Derformed. If such man thus living with more than one woman, or such woman living with more than one man, shall fail or refuse to compty with the provisions of this section, he or she shall be prosecuted for the offense of fornication, or fornication or adultery, or fornication and adultery, and punished accordingly.” Acts 1865-1866, p. 240. On the same day another act was approved which declared, that among persons of color the parent should be required to maintain his or her children, whether legitimate or illegitimate; that children should be subject to the same obligations in relation to their parents as those which existed in relation to white persons; and “that every colored child heretofore born is declared to be the legitimate child of his mother, and also of his colored father, if acknowledged by such [675] father.” Acts 1865-1866, p. 240. On December 12, 1866, another act was approved. This act contained the following provision: "Section third of the above-recited act [that is the act of March 9, 1866] shall be so construed as to apply only to such children as-were born within what was regarded as a state of wedlock, or when the parents were living together as husband and wife.” Acts 1866, p. 156. Another act, approved December 13, 1866, declared valid marriages theretofore celebrated by ordained colored ministers of the gospel between freedmen and freedwomen, and authorized colored ministers of the gospel to celebrate marriages between freedmen and freedwomen, or persons of African descent only. These acts are now codified in sections 2178 and'2180 of the Civil Code of 1910. The latter section reads as follows: "Every colored child born before the ninth day of March, 1866, is hereby declared to be the legitimate child of his mother; but such child is the legitimate child of his colored father only when born within what was regarded as a state of wedlock, or when the parents were living together as husband and wife.”
Where, as in the present case, the plaintiff, a colored person born in this State prior to Mareh 9, 1866, claimed to inherit from his father as the legitimate child of the latter, and the fact of his being an heir was put in issue by the pleadings, the burden was on him to show that he was the legitimate son of his father. The provision of the act of that date in regard to the recognition of a colored child by its father was omitted from the act of December 12, 1866; and in the case at bar the father did not die between those dates after a recognition of the plaintiff as his child. Hence the decision in White v. Ross, 40 Ga. 339, does not apply.
2. Exception was taken to the charge which was substantially in accord with section 2180 of the Civil Code. The plaintiff contended that if the father and mother recognized their relation as that of husband and wife prior to March 9, 1866, and the father acknowledged the child as his, the child would be the legitimate child of both parents, whether the state in which the father and mother lived was recognized by any one else as a state of wedlock or not. But this contention is not in accord with the statute. The expression, "what was regarded as a state of wedlock,” does not mean so regarded merely by the man and woman.
3. Error was assigned because the court stated in the presence [676] oí the jury, at the conclusion of the testimony of the plaintiff, as follows: “Under the evidence, so far as the plaintiff is concerned, he is bound by his evidence. Under the evidence, both he and the other are not both legitimate children. It does not appear which one is. They both are not. Whichever one is would inherit - all of the property, and the other none. I am not undertaking to say which was the legitimate child; but, under his evidence, both could not be legitimate children, and whichever one was would inherit all the property.” It was assigned as error that these remarks were calculated to mislead the jury, as nowhere in the entire charge of the court were they referred to or retracted, and the jury went into the consideration of the ease with this rule given by the court to govern them in their deliberations. Error was also assigned on this statement, because it was an intimation to the jury as to what had or had not been proved, and because the evidence of the plaintiff did not warrant the enunciation of any such rule. This exception was well taken. The presiding judge should not have singled out the evidence of one witness, although the plaintiff, and have stated to the jury that he was bound by such evidence, and under it he and McPrice were not both legitimate, children. This expressed an opinion on the facts. Under the Civil Code (1910), § 2180, it was possible for a colored man and woman to have been living together prior to March 9, 1866, as husband and wife, and to llave had a child born to them, which would thus be the legitimate child of both the father and mother. It was further possible for them to have separated and for the same man, prior to the date mentioned, to have lived with another woman in the relation of husband and wife, and to have had born another child, which would also be legitimate. It may be anomalous that a colored father might have had two legitimate children by different mothers prior to March 9, 1866, by having lived with each of them as his wife at the time when her child was born. But the status of slave marriages and the legitimacy of the offspring therefrom is dependent upon the statute. We do not intimate that there was any such state of facts in this case as just above mentioned. But the testimony of the plaintiff himself did not exclude such a possibility. It is not clear just what the presiding judge meant by the expression, “so far as the plaintiff is concerned, he is bound by his evidence. Under the evidence, both [677] lie and tbe other are not both legitimate children.” But is was error, at the close of the testimony of the first witness in the ease, for the court to hold that he, being the plaintiff, was bound, and to state in the presence of the jury the rule which was announced. The court should have waited until the close of the evidence, and have given instructions upon, the whole case. It was stated in the motion, to which the judge certified, that no correction was made in regard to this remark. The case should be retried upon proper instructions. On the general subject see Rhodes v. Williams, 143 Ga. 342 (85 S. E. 105).
Under the facts of the ease and the statute above quoted, there was no other error requiring a reversal.
Judgment reversed.
All the Justices concur.