The opinion of the court was delivered by
In this case the plaintiff sues to recover the price of a slave named Charles, which he sold to the defendants on a credit of ninety days.
Their answer admits the purchase and agreement to pay the price as alleged by the petitioner. But they claim a release from their obligation to pay, in consequence of redhibi-tory vices and defects in the slave sold to them, and also on account of fraud committed by the vendor in concealing from them the circumstance of the slave being afflicted with a disease at the time of sale, called dysentery, and of which he died about four days after.
The cause was submitted to a jury, who gave a verdict for the defendants, and judgment being thereon rendered, the plaintiff appealed. Previous to the appeal, a motion was made for a new trial, not based on any specific grounds; but only on the general allegations, that the verdict and judgment were contrary to law and evidence. His counsel in this court assumes in his points, as filed, two grounds of error in the judgment rendered by the court below. First, That the defendants did not support their allegations in avoidance of the contract of sale by sufficient evidence to identify the slave Charles, who died, as being the same sold to them by the plaintiff. Second, That the record affords no proof of any redhibitory defects, &c.
The last error alleged by the appellant seems to be unsupported by the facts of the case. The testimony of the keeper of the police jail, raises a violent presumption, that the slave in question, was in the habit of running away from
The evidence with regard to identity (as admitted by the counsel for the appellees,) is by no means conclusive, and the only question which remains for us to examine is, whether it be such as can justify the verdict of the jury under all the circumstances.
The only facts clearly established by the testimony in relation to this point in the cause, are, that the plaintiff sold to the defendants a negro man slave named Charles, on the I5th of May, 1830, and that about the middle of the same month a negro slave named Charles died whilst in the possession of the latter, at the plantation of R. R. Montgomery, on the Mississippi, below New-Orleans. Absolute or mathematical certainty is attainable only in abstract sciences. The highest degree of it, in relation to natural appearances, and the ordinary transactions of men, is what is called moral certainty, depending mainly on probabilities consequent from facts, and these probabilities vary from very slight to such as are so strong as to produce full conviction and persuasion on rational minds. The first rule of legal evidence is that the best which the nature of a case admits, shall be produced in support of facts alleged by one party to a suit, and denied by the other. The practice of our courts of original jurisdiction, does not admit of replications, consequently in all cases where facts are alleged by defendants in avoidance of rights claimed by plaintiffs, the latter are supposed to deny all such * allegations, or at least all material to their defence against flje pretensions of their adversaries; being in this respect in the situation of defendants. The denial of the. plaintiff in the present instance, must be presumed to extend to the defects of the slave as alleged by the defendants, and also to his identity as being the same sold by him to them. The question then arises, whether in a legal point of view the evidence supports the fact of identity. The rule of evidence above stated has reference rather to the admissibility of tes
The doctrine which recognizes names as means of identification, in disputes about slaves, is laid down in the opinion of this court, pronounced in the case of Johnson vs. Field, reported in 6 N. S. p. 635. That was a suit to recover slaves in the possession of the defendant; they were named in the petition and their identity was not denied, either expressly or impliedly in the answer: a title was set up as derived from a source different from that alleged by the plaintiff. The decision of the Supreme Court, though contrary to that of the District Court, we believe to be correct. In the present case there is an implied denial of identity as to the slave whose price is sued for, and the one which the defendants allege to have died in their possession. But according to the facts as proven, (although they might have been strengthened tyf adminicules, probably within the power of the defendants) we are opinion, that the finding of the jury was not contrary to evidence, or in other words, that it was not a forced or improbable deduction from the evidence adduced.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs in both courts.