#### JOSEPH B. G. ROULHAC *vs.*JOHN WHITE & AL.*

The declarations of a slave, at any particular time, as to the state of his health, are, from necessity, admissible in evidence.

Whenever the bodily or mental feelings of an individual, at a particular time, are material to he proved, the expression of such feelings,, made at or soon before that time, is evidence* of course subject to be weighed by the jury.

The case of *Clancy*v. Overman, 1 Dev. 4* Bat. 402, cited and approved.

Appeal from the Superior Court of Law, of Bertie County, at the Spring Term, 1848, his Honor Judge Settle presiding.

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, 1S42, 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 Doctor Barron, who stated that he saw Jack in the Fall of *641841, that bis appearance, then, indicated to him, that his health was bad. In answer to his enquiries, 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. Armstead and Mr. Capehcart 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 1o 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.

*Iieath,*for the plaintiff,

submitted the following argument :

The only question is, whether the declarations of the slave were admissible as to his *then*state of health; that such declarations are admissible, see *Aveson*v. *Lord Km-naird,*0 East. 188. *1st Greenleaf on Evidence, title Hearsay,*pages 178, 179. The slave is stated by the physicians to have been sick, and whenever *“the hodily*or mental feelings of an individual are material to be proved, the usual expressions of such feelings, made at the time in question, are original evidence.” “So also the representations by a sick person, of the nature, symptoms, and effect, of the malady, under which he is laboring, *at the, time*are received as original evidence,” and the-fact that these representations were made “to a medical attendant” even, does not exclude.them, *Greenleaf ut Supra.*

That the declarations were made by a slave does not render them inadmissible ; that such declarations of a *65slave are receivable, is sanctioned by this Court in *Clancy*v. *Overman,*1 Dev. & Bat. 402.

No counsel for the defendants.

*

Note. — The *Chief Justice,*being related to one of the parties, gave no opinion in this case.

Nash, J.

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 materia] to be proved, the expression of such feelingss made at or soon before that time, is evidence. Whether they were real or feigned, is for the jury to decide. 1st *Greenleaf’s 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 and wife*v. *Trevanion, Skin. Rep.*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. 232.*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 gestes.*In *Clancy and Over man,*1 Dev. & Bat. 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 defence was, that the boy would not learn, and his declarations to that effect were ad*66mitted; and the Court say, they are admitted, because they are evidence of his disposition and temper, which are the subjects of the investigation, and these cannot be ascertained except in that way. The case of *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.

We see, therefore, no error in the opinion, complained of, and the judgment is affirmed.

Per Curiam.' Judgment affirmed.