
    M. A. Cornish, f. w. c., v. L. N. Shelton.
    Where the disease of which a slave died manifested itself within three days after the sale, but death was caused by a relapse not attributable to negligence on the part of the purchaser, held., that the sale should be avoided.
    The presumption of the existence of a disease at the time of the sale, from its manifestation within _tíjree days after the day, may be rebutted by evidence.
    APPEAL from the Eourth District Court of New Orleans, Reynolds, J.
    
      W. H Hunt, for plaintiff.
    
      L. M Simoncls, for defendant and appellant.
   Cole, J.

This suit is instituted for the recovery of the price paid for a slave, on the ground that she was affected with a redhibitory vice, which caused her death within three days after the sale.

It is proved that plaintiff purchased from defendant the slave Diana on a Saturday; she was taken sick very early on Sunday morning, and died of yellow fever within three days after the sale.

The vice having made its appearance within three days after the sale, is presumed to have existed before. C. C. 2508; Landry v. Peterson, 4 An. 96.

It is averred by defendant that yellow fever is not a redhibitory vice; that not only is the disease curable, but that in this case the patient was actually cured, and through some imprudence or negligence she was taken with a relapse, of which she died.

It appears that her attending physician was employed by defendant, and at one time he considered her out of danger. A person who has been sick with the yellow fever is not, however, free from the danger of a relapse for a considerable period after the disease has apparently departed. If this slave committed any imprudence in leaving her bed too soon, or in eating improper food, it may perhaps be attributed to the belief of the physician that she was out of danger, which may have prevented him from warning her sufficiently of the danger of such imprudence. As this physician was employed by defendant, the latter cannot take advantage of any want of prudence on his part.

It is established that plaintiff rendered good attention to the deceased, and that that the decease of Diana is not attributable to any negligence on her part.

As this slave died of a relapse of the yellow fever, which exhibited itself within three days of the sale, then her death was produced by the effects of a disease which the law presumes to have existed before the sale.

"VVe admit that the presumption declared by Article 2508 O. 0., to wit: that the appearance of the vice within three days after the sale is not conclusive, but may be rebutted by evidence; in this case, however, there is no testimony to rebut the presumption of law. See Dugas v. Estilletts, 5 An. 559.

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