—There was no error in the charge, that the letters which passed between the parties did not show a rescission of the contract. This charge must be considered with reference to the proof shown in the record; and it is clear from this, that whatever may have been Bennett’s inclination when he wrote to the appellees, informing them of the unsoundness of the slaves, and saying that he tendered them back; the appellees did not assent to any rescission, but insisted on the contract, referring Bennett, for his indemnity, to their warranty ; and Bennett’s subsequent conduct shows that he sought this mode of redress. The record shows that he brought his action upon the warranty, thereby affirming the contract.
But again : A tender, to be available, must be continuous ; that is to say, if a- party says he tenders property, and the other, to whom the tender is made, says he will not accept, this refusal to accept may dispense with a more formal tender ; but if the party tendering it retains it in his possession, he must yield it up on the reasonable demand of the other. He keeps it as the property of that other, having by his tender disaffirmed the contract, and thereby having vested the property in the vendor, retaining it, it may be, from considerations of humanity, as the vendor’s unwilling bailee. If, however,' upon the demand of the vendor, who has never consented to a rescission, the purchaser refuses to surrender it, he affirms the contract, and destroys the effect of his previous tender ; and we see no. reason why this affirmance may not be made as well after suit brought as before. The effect of such affirmance would bo, to lot the contract stand, — the property consequently vests in the purchaser, who has his remedy upon the contract of warranty, either express or implied, by way of abatement in the price, when sued upon the notes, or by a direct suit upon the warranty.
As fo the second charge : When considered with reference to the proof, we feel satisfied it was calculated to mislead, and to induce the jury to underrate and disparage the testimony of the physicians. Several of them, from actual exam-*611illation, dopostíd to tbe fact, that tbe slaves bad certain diseases — syphilis, gonorrhea, umbilical hernia, &c. — and described tbe presence of the symptoms which attend these diseases. "When, therefore, the court told the jury, “ that the testimony of physicians was matter of opinion merely,” without discriminating between that portion of their proof which went to facts, and that which was really but matter of opinion, the jury might well have been induced to conclude their whole evidence should be treated as matter of opinion merely ; they were at least liable more readily to confound the evidence of facts with that of mere opinion, and thereby to prejudice the appellant. That the opinion of medical gentlemen, as to the length of time a disease may have existed, from the symptoms then present, is not equal to positive proof of the fact of its existence, is certainly true. The symptoms may, and doubtless often do, mislead them ; and hence such conclusions are mere matter of opinion. This was probably the meaning the judge intended should be given to the charge in question ; but the language employed justifies a very different conclusion. He was charging, of course, with reference to the proof in the cause, and the jury arc told, not that the opinion of the physicians who had deposed should be regarded by them as matter of opinion, as contradistinguished from direct or positive proof of facts, but that the testimony of physicians — that is, the evidence which the physicians in this case had furnished — “was matter of opinion merely.” Such charge manifestly tended to mislead, and'was erroneous as an abstract proposition, and injurious to appellant in its practical bearing upon tbe case.
We see no objection to the proof made by Quartemus, that when he saw the slave, Mary Jane, “ she appeared to be healthy.” The apparent condition of the physical system, as to health or sickness, is certainly matter of fact. If the opposite side desired to ascertain what the appearances were which the witness denominated healthy, they should have elicited such proof upon the cross-examination.
What we have said disposes of the several points involved in the charges. We have but to add, that the judgment, must be reversed, and the cause remanded.