
    
      SAULET vs. LOISEAU.
    
    A^peat. from the court of the parish and citv of New-Orleans.
    a new trial granted to^-f-ibrd tin opportunity to shew, Ciat a witness, sworn without any objection, seif"°'e him"
    „ The defendant, in February Í789, sold to the plaintiff a negro slave named Jacob, for S714, with the condition, that, if the slave, sick at the time, was not perfectly cured, within one month, he should take him back and repay the price; The parties placed the slave under the care of a free negro, named George, who undertook to cure him, and to whom each of the parties promised to pay ten dollars therefore.
    A few days after the expiration of the month ¿ the plaintiff brought his action to recover the price with interest, stating that Jacob, far from being cured, died on the 6th of March.
    The defendant pleaded the general issue, admitted the sale—and the condition—contending that the plaintiff had no cause of action, as Jacob was not returned within the month, without having been cured, that the sale took place on the 5th of February, and on the 4th of March, when the month expired, according; to the conditions of the sale, he was cured.
    There was a verdict for the plaintiff, and the defendant moved for a new trial, which was refused ; and judgment being given for the former, the latter appealed.
    The record shews, that George was the only witness introduced by the plaintiff.
    He deposed that, he received Jacob from the parlies, (who promised him ten dollars each,) that he laboured under a complaint of the chest— that he was weekly supplied with meat and biscuit by the defendant ; the plaintiff never furnishing any thing. At the request of the former, he put Jacob in irons, to prevent his going abroad and eating improper food. The plaintiff' was once only at the deponent’s, and wras informed Jacob was not yet cured.
    Gassie, a witness introduced by the defendant, deposed, that he was employed? from the 9th of February to the 15th of March, 1818, by the defendant, that during that time, the plaintiff came to the defendant, and the witness heard them talk of a negro, of a sale, and heard the plaintiff teli to the defendant, “ he is doing well; he is doing well.” This was in the presence of Julien.
    Julien deposed that, on the 4th of March, he was at the defendant’s with Gassie and the plaintiff, and heard the latter say to the former, that Jac®b was in good health, eating and drinking D ° well.
    
      Du Armas, for the plaintiff-.
    The new trial was properly refused. If the verdict was contrary to law or evidence, the affidavit should have specified in what particlular point. 3 Martin, 280 An application for anew trial, in older to impeach the credit of a witness sworn at the trial, cann t be listened to. Bunn vs. Hoyt, 3 Johns, 253.
    The testimony of George, the plaintiff’s witness, is not contradicted. The jury might give full credit to what the defendant’s witnesses deposed, and to the testimony of George himself, and arrive to the conclusion to which they came. It is not to be denied that Gassie and Julien heard the plaintiff say, that Jacob was doing well; that he was doing well, eating and drinking well. Let it be admitted, that these expressions were used, and does it not follow, from the death of the slave, which almost followed the uttering of these words, that the plaintiff laboured under an error ?
    But this pretended confession of the plaintiff" is not conclusive against the plaintiff". It is not proved by two witnesses, and was made in the absence of the defendant.
    The extra judicial confession, proved by, at least, two witnesses, makes full proof, when made . to the party. But, if it be made in his absence, although supported by the testimony*1 of one witness, or other presumption, it is only a semi-proof. Cur. Phil. 1, 17, n. 6, Febrero, 2, 3, 1, § 7, 72. 294.
    Were this confession to be considered as full pro<>f, still the plaintiff could shew that it war, made in error. If one admit or deny any thing, in court, thro’ error, he will be allowed, if he can, to prove the error, at any time before judgment, although the admis ion was made before the judge. Part. 3, 15, 5. If then the error of a judicial confession may be proven, a fortiori, in the present case, that of an extra-judicial one. The plaintiff has proven the error of his, by the testimony of George.
    Gregorio Lopez, in his commentar/ on this law of the partid is, cites the opinions of Baldus and Andreas. Et nota quod errónea conjessio, ctiam scepius repetita, non nocet. Et quid si, cum confessions, concurrunt aliqua indicia ? Die quod probetur contrarium. Andreas dicit quod error proba'ntur dicendo se errasse, et probando rein aliter se habere These opinions are grounded on ff 2, 2, 42, Non fatetur qui errat, nisi jus ignoraverit.
    
    
      Cuvillier, for the defendant:
    A new trial ought to have been granted, because the verdict ° 07 was contrary to law, being grounded on the testimony of one single witness, contradicted by that of two others. It was contrary to the weight of the evidence, two witnesses having sworn that the plaintiff had admitted the cure of the slave. New proofs were discovered since the verdict, by which the defendant will be enabled, on a new trial, to shew that the deposition of George deserves no credit.
    The plaintiff’s counsel contends that, the particulars, in which the verdict was contended to be contrary to the evidence, ought to have bee‘n specified in the affidavit, and cites, for this purpose, 3 Martin, 280 where a rule of the supreme couft requires such a specification in a petition for a rehearing in that court. The rules of that court cannot be considered as applicable to the parish court.
    But the affidavit, on which the new trial was prayed, shews, that since the trial, the defendant has discovered new witnesses, by which he is enabled to deprive the deposition of George from the credit, which it has received.
    Now, ex natura rei, such witnesses could not have been deemed necessary, and could not have been procured before the trial: for, till George was sworn, the defendant could not have presumed his intended deviation from the truth. And durinc; the hurry of the trial',’ when this deviation* was noticed, it was not possible instantly to discover and adduce the witnesses, by whom the defendant may establish the perjury committed.
    Farther, according to the tenor of the contract, if the negro was not cured, the sale was to be rescinded, and the defendant was to take back the slave, and refund the price. He was sold on the 5th of February: the month, mentioned in the condition, expired, on the 4th of March; the negro was then alive, and, according to the testimony taken from the lips of the party, doing well, eating-and drinking heartily ; and, if the plaintiff wished to rescind the sale, it was his duty to deliver or return the slave immediately. As he did not do so, the presumption is that, he was pleased with the bargain, and desirous of availing himseli of it. He mu$t, therefore, support, any consequent loss.
   Dubigny, J.

delivered the opinion of the court. The defendant and appellant, Francis Loiseau, sold to the appellee,Balthazar Saulet, a negro slave, named Jacob, under this condition : i! It is agreed and covenanted that, whereas the said slave is now in bad health, this sale shall be rescinded, in cále he shall not be perfectly recovered in one month from this date, and the said Loisead shall take back said slave and re-«ay the price thereof® to said B. Saulet.” Both 1^1 parties then went to one George, a free negro man, who undertakes cures, and left the slave under his care at their joint expense. Thirty days after, the slave died ; the object of the present suit is to recover the purchase money

George was sworn as a witness, and established the facts on which the appellee relies. His testimony was not objected to ; but after the verdict, the defendant made a motion for a new trial, offering to prove that George had forsworn himself, on one point, and was unworthy of belief. Without examining whether this was a case, where new a trial could be granted for the purpose of discrediting a witness, we, are satisfied that the affidavit, on which it was prayed for, was insufficient, and that the court below was right in refusing it.

The testimony of George, who swore that Jacob was very sick for several days previous to his death, has been attempted to be shaken by that of two witnesses, one of whom heard the plaintiff tell the defendant, two days before Jacob’s death, that the sick negro was going on well ; and the other, who ivas present on the same occasion, recollects that the negro was mentioned by the name of Jacob, and that the appellee said he was in good health, drinking and eating well. The appellee’s opinion of the situation ofttliat slave is, however, very immaterial, for it is in evidence m # that he never went to see him, and spoke of course from report.

The counsel for the appellant has put a construction upon the clause above quoted, which cannot hear him out. He thinks, that if the slave was not cured at the end of one month, it was the duty of the appellee to return or offer to return him to the appellant at that very time, and that in defect of making such tender, his recourse under the reservation was gone.—We see nothing in the reservation which warrants such an interpretation. The stipulation is “that if the slave shall not be properly recovered in one month from the date, the sale shall be rescinded, &c.— The plaintiff proves that he did not recover at all, but died of his complaint. That is proving more than he was bound to do to support his action.

It is, therefore ordered, adjudged'and decreed, that the judgment of the parish court be affirmed with costs.  