
    John M’Clintock ads. John Hunter.
    In an action to recover damages for the breach of warranty of the soundness of a negro, what he has said to a witness in relation to his feelings, whilst afflicted with the disease, is competent evidence; but the declarations of the negro, as to the time when the disease commenced, are inadmissible.
    BEFORE GANTT, J., AT LAURENS, SPRING TERM, 1838.
    The plaintiff brought this action to recover back part of the consideration paid for a negro, which he alleged to be unsound. It was doubtful how long the disease had existed. The negro had been examined by a physician, and the declarations of the former respecting the disease which he had. (a rupture,) and its duration, were allowed by the Court to be offered in evidence. A witness who .had worked with the negro in 1836, was also allowed to testify, that he complained of being ruptured, and that he would occasionally stop working. The jury found'for the plaintiff, and thé defendant appealed, and moved for a new trial, on the ground, that the presiding judge had admitted in evidence the declarations of negro made to tbe physician, that the disease had existed for a great length of time, though such declarations were made more than fifteen months after the plaintiff purchased him; and also, because he permitted to be given in evidence declarations made to other persons than the physician, and at other and different times.
    
      Young, defendant’s attorney.
   Curia, per Richardson,

J. Dr. Farrow was unable to assign any date to the commencement of the disease with which Ben was afflicted, from his own knowledge or observation upon the symptoms. But, he was permitted to narrate what Ben himself had said, in the course of his examination of him as a patient. And Ben fixed the commencement of the disease previous to his sale to Mr. Hunter, the plaintiff. This hearsay evidence, taken from the communications of Ben to the doctor, is objected to.

It is well settled, that what a patient has said of his own feelings, pains, &c., while afflicted with a disease which is the subject of judicial decision, may be told by the witness, and is competent evidence. Such expressions are the indications or symptoms of the disease itself; and cannot be separated from it. A dumb patient would writhe and point to the seat of his pain; while one, who spoke, would indicate the same thing in words. In such cases, the words or gestures, are equally the signs of the disease felt by the patient. They are both acts, or parts, in the detail of the disease which we seek to discover; and come within what is well understood by the res gestœ — the thing in all its exhibitions.

But when the doctor related from the lips of Ben, that the like disease had afflicted him before he was sold, we have the fact that' Ben had been sick at another time, and. when — not from the doctor’s knowledge, or the indication of the disease —but exclusively from the evidence of Ben himself.

This is incompetent; and a new trial is granted.  