McDowell v. Preston , 26 Ga. 528 ( 1858 )

By the Court.

Lumpkin J.

delivering the opinion.

We are not prepared to say, that this is a very strong case, upon any of the grounds taken in the bill of exceptions. Still upon a review of the whole of them, we have concluded to send hack this case for a re-hearing, unless the plaintiff see fit to write off $200 from the judgment, that being the amount of depreciation in the value of the negro, established by the proof.

The testimony as to the unsoundness of the woman Kesiah, at the time of the sale, and the knowledge of that fact by Mr. Preston, although somewhat conflicting, predominates in favor of the defendant. That she was laboring under rheumatism in the leg and hip, we think pretty clear. Several persons had hired her, and after keeping her a short time, sent her home, on accouut of her ailments. From this, it may be fairly inferred, that a knowledge of her situation was necessarily communicated to her owner.. One witness, Mrs. Elizabeth Davidson, swears positively, not only as to the unsoundness, but that she informed Mr; Preston of the fact.

On the other hand, Mr. McDowell made no offer to rescind the contract. He has hired out the woman this year for forty-five dollars, a fair price, considering that she cost only $435. Still it was for a preacher, and possibly for inn-door service. The exposure consequent upon the employment of a rheumatic invalid, has much to do with the disease. It is not always, nor usually perhaps a continuous disorder, unless it has become inveterately chronic. It often, to my own knowledge, like birds of passage, appears and disappears at certain seasons ; and is a complaint at all times much under the influence of the weather.

Was it right to permit the testimony of Mrs. Davidson, to be discredited or even weakened by proving that she was in the habit of taking laudanum? without going further and showing, that her mind was impaired by it, or was at least, under the influence of it at the time she testified ? We think not. And this perhaps, was the main injustice which the defendant suffered during the trial. Her evidence was very material, being the only witness as we have seen, who brought home notice directly to Preston of the unsoundness of the girl.

As to the admissibility of the proof, as to what transpired between Preston and Smith, we think the Court committed no error in letting this proof in. The examination of Smith, was not pushed far enough. But that was not the fault of tl-.o Court. If his instructions by Preston to bid for him, were unlimited as to price, it is a circumstance certainly to relieve Preston from the conclusion, that the health of the slave was seriously damaged, and that he knew it. If on the other hand, his agent rvas restricted to a low sum, it would operate the other way. As far as it went, it was competent proof.

to the only remaining ground taken in the motion for a new trial; that the defendant was sick, and unable to attend Court, and was prevented from conveying intelligence of that fact to his counsel, on account of the weather and high water, we forbear to express any opinion. It will not occur again in this case. Some of the Court think it sufficient as it stood; as it would have been a good showing for a continuance, could the facts have been known in advance of the trial. Other members are of the opinion, that the showing should have gone further; and that the party should have stated in his affidavit, as he would be required to do in a bill of review for a new trial, what injury he sustained by reason of his absence; as for instance, that certain objectionable persons were selected to try the cause; or that certain testimony could have been elicited, unknown to the attorney; or that testimony introduced against the party, might have been rebutted or explained, either by a more thorough examination of the party’s witnesses; a more searching cross-examination of his adversarie’s, or the introduction of other proof.

We leave this point here, merely adding, that in this and all such cases, the showing had better be full, as by curtailing, the application may be defeated.

Judgment reversed.