Holloway v. Cotten , 33 Ala. 529 ( 1859 )

RICE, C. J.—

Upon the authority of Eckles v. Bates, 26 Ala. 655, we hold, that the court below erred in admitting the declaration made to the witness Phillips, who was not skilled iu the science of medicine, that “she had been that way, oft' and on, for the last year or two.”

Upon the authority of the case above cited, and of Phillips v. Kelly, 29 Ala. 628, we hold, that there was no error in admitting the other declarations of the slave which were objected to by the defendant. See, also, the authorities cited in Phillips v. Kelly, supra.

The charge of the court, in relation to the declarations of the slave, is erroneous, in so far as it authorized the jury to consider the declaration of the slave, herein first above mentioned, in ascertaining whether she was unsound at the time of the sale. In other respects, and as to the other declarations, that charge is defensible.

The law required the jury to weigh the whole evidence; and no matter what any one of the witnesses may have testified, as to the unsoundness and worthlessness of the slave, yet, if 11 on the whole proof” the jury “believed the disease did not render her wholly valueless,” the court below should not have exacted of them to find “the full value of the slave for the plaintiff.”—Watson v. Anderson, 13 Ala. 202; Roberts v. Fleming, 31 Ala. 683.

In so far as the last charge of the court below conflicts with this statement of the law, it is certainly erroneous. We deem it unnecessary to say anything more as to that charge, or to reiterate the measure of damages applicable to any phase in which cases like this may be presented. In that respect, our former decisions are sufficient to guide the court below to a correct result.—See Roberts v. Fleming, 31 Ala. 683.

For the errors above noticed, -the judgment of the court below is reversed, and the cause remanded.