Mulhollan v. Huie

Martin, J.,

delivered the opinion of the court.

The defendant is appellant from a judgment rescinding the sale of a slave, on the ground of his having died of a disease, under which he labored at the time of the sale. The sale took place on the 11th of March, 1834. On the 20th of the same month, the slave was taken from the defendant’s house to a steamboat, and immediately discovered to be sick, and although attended by two physicians, and great care taken of him, he died on the 21st. The slave had been brought into the state for sale a few weeks previously.

So, -where a siave wasjaken tweive days after died,S!lan’d die tended to^hew that the disease atihesale: md, that the seller -was bound, to restore the/>r¿cé to the buyer.

By an act of the legislature, approved the 2d January, 1834, it is provided, that if any redhibitory, bodily, or mental maladies, discover themselves within fifteen days after the sale, it shall be ‘presumed to have existed on the day thereof 5 and the act is declared to have its effect from its passage, As tweNe days only elapsed between the sale and the death, the plaintiff contends the sale must necessarily be rescinded. 1 J But the defendant has urged, that he has shown by the testimony of the doctor, whom he had employed to attend his slaves that the malady did not exist before the sale ; and his 7 J . 7 counsel has contended, that the presumption of which the act speaks, is not that juris et de jure, which cannot be des-tr°yed by proof; but the simple presumption which stands until the contraiy be proved. Stabit presumptio donee contra-rium probatur. It has appeared to us useless to inquire, whether the distinction contended for, exists; because a close examination of the evidence, has not enabled us to conclude tbat ^ defendaat bas succeeded in his attempt to show that the disease did not -exist before the sale, while the testimony of the doctors employed by the plaintiff, rather tends to establish the fact that the disease did exist before.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed, with costs.