8. A loan of slaves to a married daughter, when pos session is continued for five ANDREWS V. HARTSFIELD et al. March T. 1832. 3 Yerger's In 1812, William B. Walker married a daughter of the complainant. In 1814, the complainant loaned to his daughter, the wife of said Walker, the slave in controversy. He stated at the time, that he loaned the slave solely to her, for her sole use, and independent of the control of the husband. The loan was generally known in the neighborhood, and was considered the property of complainant. The slave remained in the possession of Mr. and Mrs. Walker from 1814 until 1828, during which time she had two children. They were in that year levied on, and were about to 2., to be be sold to satisfy the debts of the husband, when this bill was filed to enjoin the sale. The bill was dismissed by the court below. years and upwards, subjects the slaves under the act of 1801, ch. 25. sec. levied on and sold for the debts of the husband. Per Cur. Green, J. It is proved by the complainants' witnesses (his two sons,) that they were present in 1814 when their father lent the girl Tiller to their sister Mary. He told her to take the girl to nurse her child; to take good care of her, and keep her until he called for her. The girl went into the possession of Walker, and so continued without interruption, until these attachments were levied upon her, a period of fourteen years. By the act of 1801, ch. 25. sec. 2., the reservation of title by the complainant, as to the creditors of Walker, is fraudulent and void; the loan not having been declared by deed, and the possession having continued without interruption more than five years. The third section of this act does not affect the question. That only applies as between the lender and borrower, and saves the right of the former to reclaim and recover the property loaned. The title of this negro must, therefore, be regarded, as to these defendants, with the possession. It is not necessary here to decide, whether a gift by parol, of personal property, to the seperate use of a married woman, would be good. This is the ordinary case of a loan to the married daughter, reserving the title in himself. Walker was the possessor of the negro, and no matter what the parties may have intended, or how notorious the complainant's claim of property may have been, the statute is peremptory, and declares that as to creditors the title shall be considered with the possession. Decree affirmed. (VII.) OF WARRANTY.* (A) OF WARRANTY OF SOUNDNESS. 1. THOMPSON V. MILBURN et al. Aug. T. 1823. 13 Martin's Any disease a slave is afflicted at sale, which gressed so with which the time of has pro Per Cur. Porter, J. The petitioners sue to obtain the price of a slave. The defendants resist the demand, on an allegation that the negro was unsound, and afflicted with redhibitory diseases, incurable in their nature, at the time they purchased him; of which diseases he died. Two gentlemen of the faculty, who were called on a consultation on the negro, five weeks after the sale, and a short time previous to his death, state, that they found him laboring under a chronic dysentery of long standing; a disease, which, a redhibitothough it may sometimes be cured by proper regimen, generally ry vice. terminates in death. Three other witnesses state, that the negro A warranty, is an indemnity against the consequences of any defect in the quality or value of the thing sold. And a representation made at the time of sale is a warranty, if so intended. Pasley v. Freeman, 3 T. Rep. 57. In general, no implied warranty arises. Parkinson v. Lee, 2 East's Rep. 314., unless there be a fraudulent concealment. Jones v. Rouden, 4 Taunt. Rep. 847. And whether there is a warranty or not, should be submitted to the jury. Whitney v. Sutton, 11 Wend. Rep. 411. Some of the principles of warranty may be thus stated. Warranty is an indemnity for any defect in the thing sold, as was before stated. And they are express or implied. Borrekens v. Berons, et al., 3 Rawle's Rep. 32. And all warranties must be made at or before the sale. Sweet v. Colgate, 20 Johns. Rep. 196. Warranties are limited, and do not guard against that which may be discovered by sight, as if a horse be warranted perfect, and he wants an ear or tail Butterfield v. Burroughs, Salk. Rep. 211. And it may be laid down as a general rule, that the vendor is not liable for the quality or soundness of the goods or article sold, unless there be an express warranty, or a fraudulent concealment or misrepresentation. Wilson v. Shackford, 4 Rand. Rep. 5.; Williams v. Stafford, 8 Pick. Rep. 250.; Sweet v. Colgate, 20 Johns. Rep. 196. The exception in the United States, is, in South Carolina, where they have adopted the civil law, which is governed by the maxim that "a sound price requires a sound commodity." Barnard v. Yates, 1 Nott & M'Cord, 142.; Timrod v. Sholbred, 1 Bay's Rep. 324. An express warranty of soundness extends to every kind of soundness, known and unknown to the seller, and if it be false, the buyer has his remedy on the warranty. Onslow v. Eames, 2 Stark N. P. C. 81. And where there is an express warranty, all implied warranties are excluded; for the law will not imply what is not expressed in a formal contract. Lanier v. Auld, 1 Murphy's Rep. 133. far as to be incurable, may be pleaded as was unwell immediately after the purchase. One called by the plaintiff declared that the negro had been afflicted with the diarrhoea, some time previous to the period when the defendant purchased him; that the physician who attended him had reported him well, and that he had quite a healthy appearance when sold. That section of the civil code which treats of the defects in the thing sold, and redhibitory vices, is by no means the most clear and satisfactory of that work; and since its enactment, several embarrassing questions aris¡ng out of its provisions, have been presented for decision. It is now, however, the settled doctrine in this court, that by the term " disease incurable in its nature," must be understood any disease of which the slave is afflicted at the time of the sale, that has progressed so far as to be incurable. Our only inquiry, then, is, do the facts, as proved in evidence, bring this case within the rule? The testimony already detailed, appears to us to show beyond doubt, that the negro was diseased on the day of the sale. The evidence of the physicians satisfies us that it was of that disease he died. Whether it had progressed so far as to be rendered incurable, is the main, and, indeed, the only difficulty which the case presents. The fact is not placed beyond all doubt by the testimony, nor can human testimony ever establish, beyond doubt, at what period a disease is incurable, unless the persons who give it are acquainted with all the means of cure which human knowledge possesses. We, however, have it in evidence here, that the slave sunk under the disease, and it is such as is generally incurable. This we think sufficient to throw the burthen of proof on the other side, and the defendant, aware that it did, has labored to show, that the fact of the disease being incurable, clearly resulted from the testimony. But in this he has completely failed. The evidence, so far from establishing the curableness of the disease, is entirely silent in regard to it. To supply the place of proof, the defendant has resorted to conjecture, and has contended, that we do not know but that if a physician had been called in earlier, the life of the slave might have been saved. We do not know what effect an earlier application to medical aid might have had, and for that very reason we cannot give the plaintiff the benefit of a fact which he has never proved. In the case of St. Romè v. Porè, the same argument was resorted to, and was considered of no weight. The ourt there held, that it lay on the vendor to show that the disease of which the slave died might, under a different course of treatment, have been cured. 10 Martin's Rep. 215. Every thing in this case rebuts the presumption that the disease would have yielded to medi cine, nor do we see that there was such negligence on the part of 2. THOMPSON V. MILBURN. Aug. T. 1823. 13 Martin's Loui siana Rep. 468. in a slave months, in action brought for the price. Per Cur. Porter, J. The petitioners sue to obtain the price Redhibitoof a slave. The defendants resist the demand, on an alle- ry defects gation that the negro was unsound, and afflicted with redhibitory may be pleaded afdiseases, incurable in their nature, at the time they purchased ter twelve him; of which diseases he died. The sale took place in the month defence of of August, 1819, and this action was commenced the first of No- an vember, 1820. The plaintiff contends, that the defendants cannot avail themselves of the defence set up, as twelve months have elapsed from the time of the purchase. The article of our code, which directs that the action of redhibition must be brought in one year at farthest from the date of the sale, can only receive an application in cases where the vendee is plaintiff, and brings an action. It leaves untouched the right to offer the want of consideration as a defence against paying the price agreed on. rule is, "Loque tiene tiempo limitado para demandarse in juicio, Febrero. p. 2. lib. 3. cap. 1. es perpetuo para exceptionarse. sec. 6. no. 250. The 3. In an action CHRETIEN V. THEARD. Feb. T. 1822. 11 Martin's Louisiana Rep. 11. Per Cur. Porter, J. This action was commenced to obtain to obtain re-recision of the sale of a negro slave, called La Fortune, sold as a cision of a slave, commen the sale of carpenter and joiner, for the price of $1500. It is alleged that he is neither; and in addition, is afflicted with ced within of disposition, a drunkard, run-away, and thief. a general denial are plead by the defendant. six months from the time of discovering the defects, at what tained a vices. redhibitory defects Prescription and The district court gave judgment against the plaintiff, and he has appealed. The the plaintiff first question to be examined, is that which the exception, as to the must prove time of commencing the action, presents. The slave was sold on time he ob the 3d April, 1819. This suit was commenced on the 14th Febknowledge ruary, 1820. The plaintiff replied to the plea of prescription of the red-plead by the defendant; that he brought his action within six hibitory months from the discovery of the vices and defects complained of in the petition. It has been strongly contested by the parties in this cause, on whom the burthen of proof lies, the plaintiff insisting that he cannot be required to prove a negative, viz. that he did not know of the existence of the defect anterior to a particular time; while the defendant urges, that this plea of the appellant is an exception to the general rule, which requires the action to be brought within six months from the date of the sale, and that he who relies on an exception must establish it. Partida, 3 tit. 14. L. 2. I have given to this subject a great deal of consideration, and my opinion is with the defendant. By our Civil Code, 358. art. 75. it is sufficient for the seller of a slave afflicted with redhibitory defects, to oppose the action, that it has not been commenced within six months from the sale. And on showing this fact, the plaintiff will be barred, unless he does away the objection, by replying that he did not discover the vices or defects six months before instituting suit. As he makes the averment, I think it his duty to prove it. Certainly, I do not wish to say that the buyer must give evidence that he did not know of the defect before a certain time, because that would be requiring him to prove a negative, which is impossible. But I think he should establish, when the facts came to his knowledge, on which he relies to show his right of setting aside the sale. And this he can do without difficulty; for the witnesses who prove the vices on the trial, can easily state when they communicated them to the plaintiff. If he has received the knowledge |