To prove that the slave in question was unsound at the time of the warranty (June, 1858), the plaintiff offered evidence of the acts and declarations of the slave before, at, and after the sale, which, if believed, tended to show that he had chronic rheumatism at the time.
The defendant's counsel objected to these declarations as (624) original evidence of unsoundness. He contended that unsoundness must first be shown by evidence aliunde, and the slave's declarations then became evidence as to the extent of the ailment and in no otherwise. The presiding judge overruled the objection, and defendant excepted.
The plaintiff offered the deposition of one Henderson to show that the slave was unsound on the day of the sale. In the deposition the defendant interrogated the witness as to whether he had any interest in the slave, to which he answered that at the time the suit was brought he in part owned the said slave, but that prior to giving his deposition he had sold his interest to the plaintiff, and at that time had no interest in him whatever. The deposition was admitted, and the defendant again excepted. *Page 480
The judge, in his instructions to the jury, stated that the plaintiff had adduced evidence going to show that the slave had been seen limping on crutches, and was heard to complain, while so on crutches and limping, and at other times, of pains in his limbs; that this evidence was, in its nature, positive; while the defendant had introduced many witnesses who knew the slave, and who swore that they considered him sound and healthy, and had never seen him or known him to be on crutches or to limp, or to be sick, unhealthy or unsound; that this was negative in its character, and that positive testimony was entitled to more weight than negative. The defendant again excepted.
Verdict for plaintiff. Judgment, and appeal by defendant. Three exceptions were taken on the trial below to the ruling of the court, on one of which, we think, is sustainable. Declarations of a slave that he is suffering from pain and disease are (625) admissible according to a well established rule in this State.
They have been assimilated to the natural cries of distress which proceed from animals when in pain. Both are considered as evidential facts of greater or less weight, according to circumstances. Such matters of evidence would be greatly strengthened by corresponding external appearances, but are not dependent upon them. It is the privilege of the jury to have them and weigh them. The last case that has been before the Court in which this doctrine is propounded is Wallace v. McIntosh,49 N.C. 434, where the previous cases are fully referred to and commented upon. The point in regard to the interest of the witness is clear. The interest which renders a witness incompetent is one in the result of the suit. The case states the witness had an interest at the time of bringing the suit, but none at the time of the trial. And this is conclusive of the question of competency. It is not stated that witness was interested in the original purchase, and we take it for granted he was not. The subsequent purchase of an interest in the slave gave him an interest in the covenant of warranty. Such a covenant is entirely personal, and does not attach to and follow the slave in the hands of a subsequent owner, giving him a right of action upon it. The instructions of the court as to the relative weight of positive and negative testimony is far from error. The rule as laid down has been long established and followed. That there is a difference, and that the positive is entitled to more weight than the negative, is not only an accepted legal maxim, but is founded, as we think, in truth and *Page 481 justice. The amount of difference the court did undertake to decide, and could not, at it was a question for the jury. In all cases the force of testimony, whether positive or negative, must depend upon a variety of collateral facts and circumstances. For instance, the force of negative testimony must, manifestly, depend upon the opportunities of observation afforded to the witness. These opportunities might be so favorable and frequent as to approach in weight to a positive statement; yet, we take it, when the positive is in conflict with negative, under any ordinary circumstances, the witnesses being equally credible, the former should preponderate. Negative, assuredly, may be (626) accumulated from different quarters and under circumstances countervail entirely positive testimony, but this is not the question. The question made is whether it be correct to declare, as a naked proposition of law, stripped of matter that may affect the weight of either, that positive testimony is entitled to more weight than negative. There is
PER CURIAM. No error.
Cited: Reeves v. Poindexter, 53 N.C. 311; S. v. Horan, 61 N.C. 575;S. v. Harris, 63 N.C. 6; Smith v. McIlwaine, 70 N.C. 289; S. v.Cambell, 76 N.C. 263; S. v. Gardner, 94 N.C. 957; Cawfield v. R. R.,111 N.C. 601; Purnell v. R. R., 122 N.C. 837; S. v. Murray, 139 N.C. 541.