6 La. 437 | La. | 1834
delivered the opinion of the court.
This is a proceeding instituted and now carried on by the executor and heirs of Robert Lewis, to compel the defendant to comply with the terms of sale of a certain slave, sold by order of the Court of Probates, as belonging to the succession of the testator. The sale was made at auction, on a credit of four months. The slave was delivered to the defendant, and' two 'days after being taken home, was permitted by his new master to go to some place for his clothes; he did not return but absconded. An exception to the jurisdiction of the court below, was taken on the part of the defendant, which was overruled. The defence on the merits, is an allegation of the redhibitory vice in the slave of running away; which was sustained by the court of the first instance, and judgment rendered by the defendant, from which the plaintiff appealed.
We are of opinion that the exception was properly set aside. The object of the proceeding (originally in a motion f°r a distringas,) is to complete a sale ordered by tbe Court of Probates, which may well be considered as the tribunal most competent to carry into full effect its own orders. The . « ,, . 1 . , , ., . correctness ol the judgment rendered on the merits, is contested on two principal grounds: 1st. That the sale having been made by order of a court, is judicial, and the estate or the representatives of Lewis, are not bound in warranty, &c. 2d. That the record affords no legal evidence of a habit of running away in the slave purchased by the defendant.
As to the first of these grounds, it is assumed in the proposition, that the article 74, page 358, of the Old Code, has not been repealed, a doctrine supported by two decisions
The second ground of defence against- the right of redhibition claimed by the defendant, is that on which the decision of the cause mainly rests. The only evidence in support of the position assumed in relation to the redhibitory vice or defect of character in the slave bought, (by the habit of running away) is the presumption established by law-arising from the fact of his having runaway within the three days immediately after the purchase, &c. The article 250 of the Louisiana Code, is relied on in support of this presumption. To understand this article, reference must be made to some of the general provisions on the subject of redhibition. The vices or defects in slaves which give rise to redhibitory actions, are divided into two classes: such as affect the health of the subject and such as affect his character. Vices of body are distinguished into relative and absolute. Those of body considered absolute, are three, leprosy, madness and epilepsy. The vices of character which give rise to redhibition, are confined to the cases in which it is proved “ That the slave has committed a capital offence, or
On the part of the plaintiffs it is contended, that this presumption created by law, regards solely vices of body; and in our opinion, with great force of reason. As to one of the vices of character, it is wholly inapplicable, viz. the commission of a capital crime. Neither can a habit be proven by proof of a single act; habit is the result of many repetitions of the same act. Effect may be given to the provision of the Code, by limiting it to diseases or vices of body, without making the law institute a forced and unreasonable presumption, and one in some degree contrary to common sense.
This question was examined pretty much at large, (if not absolutely decided) in the opinion pronounced in the case of Zanico vs. Habine, 5 Mart. 372. According to the doctrine therein indicated, the conclusion may very fairly have been drawn, that the court considered this presumption of law as solely applicable to vices of body. It is true that decision was made under the government of the old Code, but the new and old Code are, touching this matter, similar in their provisions.
It is believed that this rule of evidence was borrowed from - the Spanish law on the subject of redhibition, and although these laws are now repealed, we presume it cannot be viewed as a judicial offence, to resort to them in aid of interpretation.. We find in the 25th number, under the head of Redhibitoria, in the Curia Philipica, provisions very similar to those contained in the article 2508 of the Louisiana Code; but from the expressions there used, it is evident that the rule in relation to the presumption arising from the appearance of the vice, within three days immediately succeeding the sale, is intended to apply exclusively to vices of body.
It appears to us, that it would be in direct opposition to the philosophy of language, to say that a vice or defect made its appearance suddenly, and by one single act or circumstance, when to constitute the vice, habit or a series of acts, are required. The defendant has failed to produce legal proof in support of his exception, as being based on a redhibitory .vice.
It is, therefore, ordered, adjudged, and decreed, that the judgment of the Court of Probates be avoided, reversed and annulled; and it is further ordered, that the rule taken on the defendant for a distringas, be made absolute, and that appellee pay the costs of this appeal. Reserving to him his right to prosecute his redhibitory action, if any he has.