Mathews v. Pascal's

Martin, J., delivered the opinion of the court. The plaintiff seeks to set aside a judgment of non-suit, and to obtain the rescission of a sale of a slave sold him by the defendant’s testator. The general issue was pleaded. The slave was sold on the 12th of May, 1835 ; was sent to the plaintiff’s plantation two or three days afterwards, and on the twenty-seventh of the same month ran away, and has never since been heard of.. The testimony shows that the defendant admitted his liability, but urged that it ought to be restricted to one-half, as'he had no greater interest in the slave sold. By the act of assembly of 1834, section 3, and page 7, it is provided, that in redhibitory actions, on the score of the [52] slave being a runaway, the plaintiff shall not be bound to prove, that the habit' of running away existed before the sale, when the vice is discovered within two months after it. The plaintiff is hound to set out every fart material to his case, whether it involves a positive or negative; but he is not required to allege the absence or non-existence of iaets which might defeat his tiie^statme^of 1834, whichpre-chiss^of staves" 'time^of^sale they elope wiih-terwards^u &^0'eíhat¿° the siaveinquestion, ran away within a few days after tile Salevi(ienee shows it wastes» than sixty» So, if the in-aipm?shraent"s proved, or it is shown die slave has been in the state more than eight months, it destroys the presumption of law that a redhibito-ry vice existed at the time of sale; but the plaintiff is not required to cd-leqe that neither ot these facts existed. Exceptions which come in by way of proviso, or in a sub-se?uent statute matters of de-pi.0v¡s'0 i„°’the exception from clause, neeTml taken not!oe of in a libel to enforce the for-matter' of de-in his claim. 9 [52] But the defendant contends, that the plaintiff was properly non-suited, because the petition does not state that the slave had not been eight months in the state; neither was this proved. lie further urges, that the plaintiff is bound to set out every fact material to his case, and this is required, whether such fact involves a positive or negative. This we admit. It is true, the petition alleges that the 1 . . . slave ran away a few clays after the sale ; while it is contended, that it ought to have been alleged, that the running away was wRhiQ sixty. The expression, a few days, perhaps excludes a greater number of days, than that which constitutes the next division of time, a week or a month. we exPress n0 opinion, as the number of days has, by evidence, introduced without any objection, been shown be less than sixty, to wit: fifteen. Although the plaintiff be bound to state every fact which is necessary to maintain his action, he is under no obligation . T . „ . , , to aver the absence or non-existence or facts which may defeat R- The infliction of unusual chastisement is a fact, which, if proved,- would have defeated his right to the ^ ® presumption created by the act of 1834, as well as proof of the having resided more than eight months in the state before the sale ; vet even the counsel of the defendant has not contended, that the plaintiff ought to have averred that no unusual chastisement had been inflicted. He urges, that the rule of the common law is, that if there be, in the clause of a stalute which is pleaded, any proviso or exception, this must be cited, though it make against the party reciting it. 7 Bacon’s Abr. tit. Statute, letter L., page 395. Bacon, in the article from which this quotation is taken, treats of the pleadings of statutes. The statutes, therefore, he speaks of, must be private ones, which alone are to be pleaded ; public ones need not be. In this article, however, [53] and within a very few paragraphs, he says, “ That no person is obliged to recite in pleading, any more of a statute, than the clause which makes for himself.” Idem. But it has been pitínüff^'vho claimed the forfeiture of a slave, on its removal “ tZmuMn d°wer> -without the corneta ot the reversioner, or m^anege^and Prove /he db-sent., ruie,ttatSthene-this does not ap-which a party ¡*ha££ith a ctb! Pable omission or breach of duty; for it is one "ot to presume that a person acted plaintiff sues un-°f ates ’ the presumption that ran away within two months after sale, was a runaway before the rise’to the againsmhe'seU-ei-¡ provided, such a slave had not been in the eight //etc/, that the plaintiff need not allege and prove the fact. It is for the defendant to show that he comes within the proviso, as a matter of de-fence. [53] The plaintiff’s counsel has replied, that it is a “ well set-tied rule, that a party who is to be benefited by, or to avail himself of, an exception or proviso, must show it. Judge Story, in the case of the United States vs. Haywood, 2 Gallison, 497, says, “ exceptions which come in by way of proviso, or in subsequent statutes, are properly matter of defence for the defendant.” See The Margaret; Haley, claimant, 9 Wheaton 421. In the case of Hicks and Wife vs. Martin, 9 Martin, 47, it was held, that the plaintiff who claimed the forfeiture of the right to a slave, on its removal from Virginia, by,a tenant-in dower, without the consent of the heir, was bound to allege and prove (he absence of that consent. The court say, that although it be a general rule, that the negative is not to be proved, it does not apply to a case, in which a party charges , , . , , , , . . , , , _ . the other with a culpable omission or breach of duty; for it is one of the first principles of justice, not to presume that a person has acted illegally. This case cited by defendant’s r ° 1 1 counsel, does not appear applicable to the present. He further contends, that the presumption must be, that the slave had been more than eight months in the state before the sale ; because the very greatest part of the slaves in the state have been so. ' If this be a violent presumption, which is equivalent to a proof, the defendant must have entitled himself to the use of it by averring the fact. It appears to us, indeed, the weak presumption which moves not at all The very greatest part of the inhabitants of New-Orleans, are citizens of the United „ , , . , . . ... States; yet the inhabitant who claims the rights of a citizen, will not successfully claim it, on the presumption arising from this circumstance. The very greatest part of those inhabi- . , „ . . . tants pay some tax; yet, the voter at the poll, is rejected, 11 he does not show that he himself has paid a tax. it very seldom happens, that the purchaser of a slave, from a negro trader, or stranger, can show, whether or not the [54] slave has been eight months in the state. It vevy seldom happens, however, that the vendor cannot, or is unable to malee this pi oof. ^ ':’s a £00(^ rule, to require the production of evidence from him, who is presumed to have it in his power; and there is a peculiar reason to enforce this rule in a case like the present. It is, therefore, ordered, adjudged and decreed, that the of the Court of Probates be,annulled, avoided and reversed ; that the sale of the slave Dempsey be rescinded, and that the plaintiff recover from the defendant the sum of * eight hundred dollars, to be paid by the latter in the due course of the administration of his testator’s estate, with costs 0f sujt jn courts.