¶1delivered the opinion of the court.
¶2The plaintiff seeks to set aside a judgment of non-suit, and to obtain the rescission of a sale of a slave sold him by the defendant’s testator. The general issue was pleaded.
¶3The slave was sold on the 12th of May, 1835 ; was sent to the plaintiff’s plantation two or three days afterwards, and on the twenty-seventh of the same month ran away, and has never since been heard of.. The testimony shows that the defendant admitted his liability, but urged that it ought to be restricted to one-half, as'he had no greater interest in the slave sold.
¶4By the act of assembly of 1834, section 3, and page 7, it is provided, that in redhibitory actions, on the score of the *52slave being a runaway, the plaintiff shall not be bound to prove, that the habit' of running away existed before the sale, when the vice is discovered within two months after it.
¶5*52But the defendant contends, that the plaintiff was properly non-suited, because the petition does not state that the slave had not been eight months in the state; neither was this proved.
¶6lie further urges, that the plaintiff is bound to set out every fact material to his case, and this is required, whether such fact involves a positive or negative.
¶7This we admit. It is true, the petition alleges that the 1 . . . slave ran away a few clays after the sale ; while it is contended, that it ought to have been alleged, that the running away was wRhiQ sixty. The expression, a few days, perhaps excludes a greater number of days, than that which constitutes the next division of time, a week or a month. we exPress n0 opinion, as the number of days has, by evidence, introduced without any objection, been shown be less than sixty, to wit: fifteen.
¶8Although the plaintiff be bound to state every fact which is necessary to maintain his action, he is under no obligation . T . „ . , , to aver the absence or non-existence or facts which may defeat R- The infliction of unusual chastisement is a fact, which, if proved,- would have defeated his right to the ^ ® presumption created by the act of 1834, as well as proof of the having resided more than eight months in the state before the sale ; vet even the counsel of the defendant has not contended, that the plaintiff ought to have averred that no unusual chastisement had been inflicted.
¶9He urges, that the rule of the common law is, that if there be, in the clause of a stalute which is pleaded, any proviso or exception, this must be cited, though it make against the party reciting it. 7 Bacon’s Abr. tit. Statute, letter L., page 395.
¶10Bacon, in the article from which this quotation is taken, treats of the pleadings of statutes. The statutes, therefore, he speaks of, must be private ones, which alone are to be pleaded ; public ones need not be. In this article, however, *53and within a very few paragraphs, he says, “ That no person is obliged to recite in pleading, any more of a statute, than the clause which makes for himself.” Idem.
¶11*53The plaintiff’s counsel has replied, that it is a “ well set-tied rule, that a party who is to be benefited by, or to avail himself of, an exception or proviso, must show it. Judge Story, in the case of the United States vs. Haywood, 2 Gallison, 497, says, “ exceptions which come in by way of proviso, or in subsequent statutes, are properly matter of defence for the defendant.” See The Margaret; Haley, claimant, 9 Wheaton 421.
¶12In the case of Hicks and Wife vs. Martin, 9 Martin, 47, it was held, that the plaintiff who claimed the forfeiture of the right to a slave, on its removal from Virginia, by,a tenant-in dower, without the consent of the heir, was bound to allege and prove (he absence of that consent. The court say, that although it be a general rule, that the negative is not to be proved, it does not apply to a case, in which a party charges , , . , , , , . . , , , _ . the other with a culpable omission or breach of duty; for it is one of the first principles of justice, not to presume that a person has acted illegally. This case cited by defendant’s r ° 1 1 counsel, does not appear applicable to the present.
¶13He further contends, that the presumption must be, that the slave had been more than eight months in the state before the sale ; because the very greatest part of the slaves in the state have been so. '
¶14If this be a violent presumption, which is equivalent to a proof, the defendant must have entitled himself to the use of it by averring the fact. It appears to us, indeed, the weak presumption which moves not at all The very greatest part of the inhabitants of New-Orleans, are citizens of the United „ , , . , . . ... States; yet the inhabitant who claims the rights of a citizen, will not successfully claim it, on the presumption arising from this circumstance. The very greatest part of those inhabi- . , „ . . . tants pay some tax; yet, the voter at the poll, is rejected, 11 he does not show that he himself has paid a tax.
¶15it very seldom happens, that the purchaser of a slave, from a negro trader, or stranger, can show, whether or not the *54slave has been eight months in the state. It vevy seldom happens, however, that the vendor cannot, or is unable to malee this pi oof.
¶16^ ':’s a £00(^ rule, to require the production of evidence from him, who is presumed to have it in his power; and there is a peculiar reason to enforce this rule in a case like the present.
¶17It is, therefore, ordered, adjudged and decreed, that the of the Court of Probates be,annulled, avoided and reversed ; that the sale of the slave Dempsey be rescinded, and that the plaintiff recover from the defendant the sum of * eight hundred dollars, to be paid by the latter in the due course of the administration of his testator’s estate, with costs 0f sujt jn courts.