McCeney v. Duvall

Goldsborough, J., delivered the opinion, of this Court: This was an action instituted in the Circuit Court for Anne Arundel County, by the appellee against the appellant, to recover damages on a receipt under seal containing a warranty of soundness of certain negro slaves, amongst" whom, was the negro Hester, the- subject of this controversy. During, the progress of the trial in the Court below j the appellant took three exceptions. One of them, to the admission of evidence objected to by him, the second to the rejection of evidence offered by him, and the third, to the rejection of the appellant’s eight prayers. The first exception contains the evidence of John Lamb, a witness produced on the part of the appellee, who, having been examined, and having given other evidence not objected to, proceeded to state declarations of negro Hester made by her to the appellant or in his presence, and in reply .to the questions of the appellant, as to the length of time she had been suffering with the.disease and her reasons for not mentioning it to him. .

It was to these declarations of Hester, ás will more fully appear hereafter, that the appellant objected. The appellant, as tending to prove the soundness of Hester, asked Dr. Claytor whether he, the appellant, was not in the habit of sending for a physician whenever his negroes were at all sick, having proved by the witness that the appellant never attended himself to his negroes, and had no other- physician but witness for many years. The Court refused to permit this evidence to go to the jury, to this refusal the appellant excepted. We are guided by the decisions of other States in disposing of the question in the first exception, as it is without precedent in this.

It is insisted by the appellee that the declarations of negro Hester, under the circumstances, were admissible, either from the necessity of the case, or were a part of the res gesta, or because of the appellant’s acquiescence. While it may be conceded that the authorities ¹⁸³ cited by the appellee, do sustain the doctrine that the declarations of a slave to a physician or other persons, as to the symptons of the disease under which she is then laboring, are admissible, yet in view of the policy of this State as indicated by her legislation, and as the admission of such evidence is an exception, we feel ourselves justified in restraining the exception to the strictest limits. The statements made by Hester, from the character of the question put by the appellant, refer not to her 'present diseased condition which would assimilate this to the cases cited by the appellee, but to an antecedent period; to answer such a question, would require the exorcise of memory, and not being evidence from necessity, nor under oath, their repetition by the witness is therefore but hearsay. We interpret the decisions to mean that the declarations of a slave, though admissible to prove the present nature of the disease and present condition of the party, they must be confined to the disease under which the slave is laboring at the time she makes her declarations, and cannot be so extended, as to make those declarations evidence to show that she had been diseased at a period anterior to that time, or to prove that the disease had existed for any considerable length of time.

In a similar case cited in the Georgia R., part 1st, page 79, the Court said: “This would be making the sayings of the negro evidence, to prove a distinct fact which is susceptible of being proved by other testimony, and therefore the same necessity does not exist for it as in the other Case.” This distinction is fully sustained by the case of McClintock vs. Hunter, Dudley’s S. C. R., 328; see also the other cases cited by appellant on this point. It may be contended that the negro’s declarations acquired the force of evidence, because they were extracted by the question of the appellant, we do not think so; if they would not be evidence (except in the restricted sense above referred to) when made to a physician they acquire no greater force under the circumstances of this case. They ar® ¹⁸⁴ therefore not original evidence from necessity, nor are they to be considered as a part of the res gesta. But it is contended that they are evidence from the acquiescence of the appellant.

As we interpret acquiescence, it implies a consciousness or anticipation of the answer to be given to the question asked as well as consent to the answer. In such case, the appellant’s silence might be considered as acquiescence. But the very nature of the question put by him, clearly shows that he was wholly ignorant of the slave’s condition, and was thus