
    T. Gatlin v. B. Kendig.
    The seller, who knows the vice of the thing he sells, and omits to declare it, besides the restitution of the price and repayment of the expenses, is answerable to the buyer in damages.
    In this case the action for redhibition maybe commenoed at anytime, provided a year has not elapsed since the discovery of the vice.
    This discovery is not to be presumed; it must be proved by the seller.
    APPEAL from the Eourth District Court of New Orleans,
    
      Price, J. Simonds & Fenner,-for plaintiff. T. J. c& A. Q. Senvmes, for defendant and appellant.
   Howell, J.

This is a suit to rescind the sal® of a slave, on account of the vice of running away, alleged to have been known by the seller, and not declared to the purchaser ; and the only question presented for our decision is the prescription of one year, set up by the defendant.

The sale was made on the 4th Eebruary, 1858, and the slave ran away in May following. Suit was instituted on 24th March, 1860.

It is clearly shown that the defendant was aware at the date of the sale of the existence of the alleged vice, and under the law it was incumbent on him to prove that, when suit was commenced, more than a year had elapsed since plaintiff discovered that said vice existed at the date of or before the sale. Article 2524 C. C. expressly provides that this discovery is not to be presumed; it must be proved by the seller. See 3 A. 464; C. C. 2505, 2512, 2523. The evidence shows that plaintiff became aware in the fall of 1859, only a few months before instituting suit, that the slave was a runaway when he bought him ; and defendant has offered no proof that this discovery was made at an earlier date. The running away, more than, two months after the sale, and absence for more than one month, did not establish the existence of the vice before the sale, or knowledge in plaintiff.

It is therefore ordered that the judgment be affirmed, with costs.  