* NOTE. — The Chief Justice, being related to one of the parties, gave no opinion in this case.
The action is in case for fraud in the sale of a slave named Jack. The plaintiff purchased the slave from the defendants, in January, 1842, and he died in the following fall, of consumption. To show that Jack was unsound at the time of the sale the plaintiff produced a Dr. Barron, who stated that he saw Jack in the fall of 1841; that his appearance, then, indicated to him that his health was bad. In answer to his (64) inquiries, Jack said he then had a sharp pain in his breast, and from the sickly appearance of his skin and his hurried respiration the witness had no doubt he was then laboring under the incipient stages of consumption. Dr. Armistead and Mr. Capehart also saw the negro in the fall or winter of 1841, while in the possession of White, one of the defendants, before the plaintiff bought him, and testified to the declarations of Jack as to his then situation. The defendants objected to the admissions of the declarations of Jack at the time they were offered; the court overruled the objection. The jury found a verdict for the plaintiff, and the defendants moved for a new trial because the court had admitted the declarations of Jack, and the court overruled the motion, and the defendants appealed.
There can be no doubt that his Honor was correct in admitting, as evidence, the declarations of the slave as to the state of his health at the time they were made. The question was as to the health of Jack before and at the time of the sale. And whenever the bodily or mental feelings of an individual, at a particular time, are material to be proved, the expression of such feelings, made at or soon before that time, is evidence. *55
Whether they were real or feigned is for the jury to decide. 1 Greenleaf Evidence, 178. Upon this principle it is that the declarations of a wife, made immediately after receiving an injury, are receivable as evidence in an action by her and her husband — not to show who did the injury, but as to its extent.Thompson v. Trevanion, Skin., 402. Inquiries by medical men and the answers to them are evidence to show the state of health of the individual — it is admissible from the very nature of the thing. Aveson v. Lord Kennaird, 6 East., 188. So, in an action for an assault and battery, what the plaintiff has said to his surgeon, of what he has suffered from the assault, is competent evidence. 1 Phil., 332. Such declarations made by a white man, then, are clearly admissible in evidence. Is the principle varied when proceeding from a slave? From the nature of the evidence, we think not. It is admitted from necessity, and as being in the nature of pars res gesta. In Clancy v. Overman,18 N.C. 402, the declarations of a slave were admitted in evidence. He had been bound apprentice to the defendant, to learn the trade of a carriage maker, and the action was brought to recover damages for not teaching him the trade; the defense was that the boy would not learn, and his declarations to that effect were admitted; and the court say they are admitted because they are evidence of his disposition and temper, (66) which are the subjects of the investigation, and these cannot be ascertained except in that way. Gray v. Young, 4 McCord, 38, is a direct authority. That was an action for breach of a warranty of the soundness of a slave. His declarations, that he had a pain in his side, by which the disease was detected, were held to be admissible. So in Turner v. Knox, 7 Munroe, the same doctrine is held. The act of Assembly upon the subject of persons of color being witnesses against white persons does not apply.
PER CURIAM. Judgment affirmed.
Cited: Lusk v. McDaniel, 35 N.C. 487; Wallace v. McIntosh, 49 N.C. 435;Bell v. Morrisett, 51 N.C. 179; Gardner v. Klutts, 53 N.C. 376; S.v. Harris, 63 N.C. 6. *56
