Melvin v. Easley

• Decision Date: 30 June 1854
• Citation: Melvin v. Easley, 1 Jones 386, 46 N.C. 386, 62 Am.Dec. 171 (N.C. 1854)
• Court: North Carolina Supreme Court
• Parties: JAMES K. MELVIN v. HENRY EASLEY.

1 Jones (NC) 386

46 N.C. 386

62 Am.Dec. 171

JAMES K. MELVIN

v.HENRY EASLEY.

Supreme Court of North Carolina.

June Term, 1854.

Professional books, or books of science, (e. g. medical books,) are not admissible in evidence, though experts may be asked their judgment, and the grounds of it, which may in some degree be founded on books, as a part of their general knowledge.

Where counsel, in his address to the jury, read and commented on a book of science, as evidence in the cause, without being interrupted by the adverse counsel, this is no waiver of the error, for it was the duty of the Judge, in his instructions to the jury, to present the case to them properly, and to correct any errors into which counsel may have fallen.

For the Judge to say that a book on farriery, which had been read by counsel, was entitled to as much authority as a witness, who had been examined (as an expert in the science of diseases of horses,) is a clear violation of the act of 1796, (1 Rev. Stat. ch. 31, sec. 136,) forbidding the Judge to express an opinion on the facts.

THIS was an action of Assumpsit, for a breach of a warranty of the soundness of a horse, tried before his Honor Judge SAUNDERS, on the last Circuit at New Hanover.

For the purpose of proving the unsonndness of the horse, the plaintiff introduced three witnesses, who testified to the swelling of his sheath, &c., and his death.

The defendant then examined a witness, who stated he had been the keeper of a livery stable, and thought he had some knowledge of the diseases of horses; and upon being asked his opinion, said he thought that the swelling of the sheath was not such a disease as would permanently impair the value of the horse, for that it was only a temporary disease.

The counsel for the plaintiff, in his address to the jury, alluded to this testimony of the defendant's witness, and said that though the swelling of the sheath might not be a disease of itself, it was one of the symptoms of stone in the bladder, which he contended was the disease of which the horse died. In support of this, the counsel referred to a book which he held in his hand, but did not read, which stated this as one of the symptoms of that disease. No objection was taken to this course, and the counsel closed the book, and handed it to the Judge.

His Honor, in his charge to the jury on this point, said that the defendant's witness had been permitted to express an opinion that swelling of the sheath was not such a disease as to impair, permanently, the value of the horse; and, in answer to this, the plaintiff's counsel argued, that although this might not be a disease of itself, yet it was one of the external symptoms of stone in the bladder, and referred to the book which he held in his hand, in support of the truth of his position. His Honor then added, that he had looked into the book, and found under the head of “Stone in the Bladder,” that the swelling of the sheath was stated to be symptomatic of the disease of stone in the bladder; and further, that, as it was an American edition of an English book, that treated of the diseases of horses, he supposed...