December, 1832. ed to show, that the negro man Charles, mentioned therein, EASTERN Dis. died of any redhibitory vice, or that he died at all. L. C. Duncan, for appellees. The evidence supports the verdict and judgment of the court, whence the appeal is taken. The opinion of the court was delivered by Mathews, J. 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 redhibitory 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 unsup ported 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 BRUCE vs. STONE ET AL. December, 1832. EASTERN DIS. his master immediately previous to the sale. But in all events, the fraud practised by the seller in concealing the disease of which the slave died, and so soon after the sale, STONE ET AL. Would be a good cause of redhibition. BRUCE vs. 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 15th 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 jurisdicIn all cases where tion, does not admit of replications, consequently in all cases by defendants in where facts are alleged by defendants in avoidance of rights rights claimed by claimed by plaintiffs, the latter are supposed to deny all such facts are alleged avoidance of plaintiffs, the lat to deny all such allegations. ter are supposed allegations, or at least all material to their defence against the 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 December, 1832. BRUCE vs. timony, than the effect which may be produced by it when EASTERN DIS. admissible in relation to the conviction, belief or persuasion of the truth of facts alleged in the minds of those called on to judge and determine on such facts. Men free and men who STONE ET AL. are slaves, (perhaps not much in accordance with the dignity of human nature,) are distinguished, one from another, by names arbitrarily given, as well as by their different physical and moral qualities; but the same name is often given to several individuals, whilst the bodily and mental structure of each separate individual is distinguishable from all others. In the present case, the only prominent circumstance proven of the identity of the slave which died, with the one which was sold, is the name. Although his death, so soon after the sale, might have deprived the defendants of the most certain means of identifying him, yet there were others in their power, such as showing by evidence that they were owners of but four slaves previous to his death, that they owned no other called Charles at the time when the slave in question died; that they were traders in wood, and that their course of trade was from New-Orleans down the river to the plantations below the city, and up again, &c., carried on in a small vessel, such as that on board of which the slave was employed. These additional proofs would certainly have strengthened The presumption the fact of identity resulting from the similarity of names. similarity But without them, can we take on ourselves to say that the ed by other cirjury came to an incorrect conclusion on the facts of the cause as proven to them? In answer to this question, it may be stated, confidently, that the jurors were the proper judges in this matter, and being such, great weight must be accorded to their verdict. Yet, if we, (who from the constitution of this court, must also judge of facts,) on an impartial and legal investigation of the evidence, feel ourselves bound to come to a different conclusion, the appellant ought to be relieved. The prominent facts proven as above stated, are that a negro man slave named Charles, was sold by the plaintiff to the defendants on the 15th of May, 1830, and that about four days after, a negro man slave named Charles, died in the possession of the latter, of a disease, which, from the nature of resulting from a of names,unsupport cumstances, is not proof of the iden tity of a slave. December, 1832. BRUCE vs. EASTERN DIS. the human constitution, he most probably had on or before the date of the sale. From this simple statement, it cannot be truly said that the verdict of the jury is contrary to eviSTONE ET AL. dence. This we deem, may be considered as weak, and possibly other men judging on it might have come to a different conclusion, but we are unable to say positively that the conclusion of those judges of the facts, was incorrect; it has the support of strong probability, a proper basis of conviction, belief and persuasion, in human affairs. 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 The verdict of by adminicules, probably within the power of the defendants) not a forced or we are of opinion, that the finding of the jury was not con a jury which is improbable de duction from the evidence adduced trary to evidence, or in other words, that it was not a forced will not be dis turbed by this or improbable deduction from the evidence adduced. court. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs in both courts. Whether the general rules of maritime salvage are applicable to the raising of a vessel and cargo sunk in the Mississippi River.—Query? One person may claim the benefit of contract for salvage made by another respecting the cargo in a vessel of which they are the joint owners, and in the raising of which from the bottom of the river, they share equally in labor and expense. Where no fraud or gross negligence is chargeable on the hirer, the owner must sustain the damage resulting from the loss of the thing hired. This action was brought to recover one half the salvage which the defendant received for raising the cargo of a brig sunk at the mouth of the Mississippi river. The plaintiff avers, that the steamboat used in raising the brig was worked on joint account of himself and defendant. The latter, in his answer, denies this averment. The cause was tried in the court below, and judgment was rendered for the plaintiff. The defendant, after an unsuccessful attempt to obtain a new trial, appealed. Preston, for appellants, contended: That there was no evidence that the steamboat was worked on joint account. Plaintiff was only concerned with the brig, and therefore should not share in the salvage for raising the cargo. Plaintiff run no personal risks or made any personal sacrifices. See the cases of the Harmony and Arethusa, cited in Lex Mercatoria. Eustis, for appellee, made the following points: 1. The judgment must be affirmed, because the evidence shows, that at the time the salvage was earned, the steamboat |