was made by a slave, and the party affected by it had made by his reply a direct admission of its truth, there could be no doubt of the admissibility of the statement and reply; and in cases of implied admissions, the admission, instead of being made by language, is made by the silence of the party.”[57] There seems no end to the illustrations of this exclusion; as, for instance, when a colored woman acted as interpreter between a testator and the person who drafted the will. In this case, Judge Lumpkin said: “We hold, that, if a negro interpreter, incapable by law of being sworn, is the _only_ channel of communication between the testator and writer of the will, and there be no other evidence of the testator’s knowledge of its contents or his assent thereto than that which is derived through this medium, the will cannot be executed. But if the will be written in the presence of the testator, and, in a language which he understands, it is read over to him, and his dictation and approval of the instrument are interpreted by a negro in his hearing, and in the hearing of others interested in its contents, and he signifies no dissent thereto by signs or otherwise, but, on the contrary, is understood to express himself satisfied, the will may be established, especially if it appears to have been made in conformity to the previously declared intentions of the testator as to the disposition of his property.”[58] It has been decided that the incapacity of a free colored person will not prevent him, even in a proceeding against a white person, from making an affidavit required to obtain a continuance, a new trial, absent testimony, or bail, or from swearing to a plea of _non est factum_. He may also bind a white person to keep the peace, or make affidavit for a writ of _Habeas Corpus_; and generally he may make such affidavits as may be necessary to commence a suit, or to procure such orders or steps to be taken therein as may be required to bring on a trial.[59] Without this capacity, he would, according to Chief Justice Robertson, of Kentucky, “be virtually disfranchised.” But the Chief Justice adds, that, when he is swearing to facts against a white man, to compel him to keep the peace, “he is not a witness, but a party swearing to what any other party may.”[60] And thus his incapacity as witness is still recognized.