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appellant, contends, that the plaintiff is the slave of Jean Pierre Metayer, whose attorney in fact he shows himself to be. The only question at issue between the parties is, whether the plaintiff is a free person or a slave. Jean Pierre Metayer has intervened in the suit; but, as that intervention changes not the situation of the case, there is no necessity to notice it. It is admitted, on both sides, that the plaintiff once was the slave of Charles Metayer, the father of the person in whose behalf the defendant caused her to be arrested. But the plaintiff maintains that she has been enfranchised by him. The evidence, however, which she has introduced in support of that allegation, is of such a nature that it would be nugatory to investigate it. One only circumstance deserves some notice; and that is, her enjoyment of her freedom during a number of years. It is in evidence that the plaintiff, ever since she left Cape François, in 1803, has lived as a free person, first at Baracoa, in the Island of Cuba, and from the year 1809 at New Orleans. A creditor of her late master caused her to be seized in 1810, as the property of his debtor ; but a civil interruption of possession can take place only at the suit of the owner; and this interruption by the owner did not happen until some time in the year 1816; that is to say, aster a possession of about thirteen years. By the laws of Spain, a slave can acquire his freedom by a possession of ten years, in the presence of his master, or of twenty years in his absence. It appears in this case, that during all the time that the plaintiff enjoyed her freedom, the master was absent. Thus, according to the Spanish laws, the possession of the plaintiff falls far short of the time required to prescribe. It was doubted whether that disposition of the Spanish laws had not been repealed by the general provision introduced in our code, concerning the prescription of slaves. But, it is believed, that this article of our code is relative only to the acquisition of slaves by prescription, and cannot be construed to embrace the prescription of liberty by themselves. We are, therefore, bound to say, that the plaintiff has not succeeded to prove her freedom, and that she cannot recover any damages for what she calls her unjust imprisonment and detention.

14

slaves to a

when pos

for five

on

8. ANDREWS v. HARTSFIELD et al. March T. 1832. 3 Yerger's

Tenn. Rep. 39. A loan of In 1812, William B. Walker married a daughter of the commarried plainant. In 1814, the complainant loaned to his daughter, the daughter,

wife of said Walker, the slave in controversy. He stated at the session is time, that he loaned the slave solely to her, for her sole use, and continued independent of the control of the husband.

The loan was geneupwards, rally known in the neighborhood, and was considered the property subjects of complainant. The slave remained in the possession of Mr. and the slaves under the Mrs. Walker from 1814 until 1828, during which time she had two act of 1801, ch. 25. sec. 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 levied and sold

to enjoin the sale. The bill was dismissed by the court below. for the debts of the Per Cur. Green, J. It is proved by the complainants' witnesshusband.

es (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 S.JUNDNESS.

1. THOMPSON V. MILBURN et al. Aug. T. 1823. 13 Martin's

Louisiana Rep. 468. Per Cur. Porter, J. Porter, J. The petitioners sue to obtain the price Any disease

with which of a slave. The defendants resist the demand, on an allegation a slave is that the negro was unsound, and afflicted with redhibitory diseases, afflicted at incurable in their nature, at the time they purchased him; of which sale, which diseases he died. Two gentlemen of the faculty, who were called gressed so on a consultation on the negro, five weeks after the sale, and a

incurable, short time previous to his death, state, that they found him labor- may be

pleaded as ing 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

has pro

far as to be

* 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.

was unwell immediately after the purchase. One called by the plaintiff declared that the negro had been afflicted with the diarrhæa, some time previous to the period when the defendant purchased him; that the physician who attended bim bad 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 arising 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 the vendee as to deprive him of what we conceive a just and conscientious desence. As was said in the case just cited, physicians are frequently not resorted to until family medicines fail. The right of purchasers to resist the payment of an object which turns out to be of no value, should not be made to depend on their medical skill; on their knowledge that a disease on its first appearance is a dangerous one; and that recourse must be instantly had to professional men. That of which the slave died we know to be one that is slow in its progress, and not apt, in its incipient stages, to excite much alarm. The jury have found that the negro was, at the time of sale, afflicted with an acute dysentery.

We see nothing in the evidence to support the conclusion. Taking it to be correct, it would not affect the decision of the case. Judgment affirmed.

in a slave

action

2. THOMPSON v. MILBURN. Aug. T. 1823. 13 Martin's Loui

siana Rep. 468. Per Cur. Porter, J. The petitioners sue to obtain the price Redhibitoof a slave. The defendants resist the demand, on an alle- y defects gation that the negro was unsound, and as icted with redhibitory may be

pleaded af. diseases, incurable in their nature, at the time they purchased ter twelve bim; of which diseases he died. The sale took place in the month months in of August, 1819, and this action was commenced the first of No- an

brought for vember, 1820. The plaintiff contends, that the defendants cannot the price. 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 verdee 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. The rule is, “ Loque tiene tiempo limitado para demandarse in juicio, es perpetuo para exceptionarse.” Febrero. p. 2. lib. 3. cap. 1. sec. 6. no. 250.

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