called upon by the plaintiff, to the woman; she appeared very sick, and he supposed her incurable. He attended her from the 17th of May, 1818, till the 13th June, when she died. On the second day of his attendance, she was in a state of complete marasme, with all the symptoms of a chronic disease, in its last stage; her legs swollen. He attended her carefully, but, as he had supposed, to no purpose. The disease he believes was of seven or eight months' standing, and quite incurable when he saw her. Giguel, the plaintiff's brother-in-law, deposed, he knew the woman, who had before been his property. The defendant applied to him before he bought her, and he told him she was a good servant. He did not know her to be sick before she died at his house on the 13th of June; the plaintiff having put her there.

It is contended, that the plaintiff cannot recover, as the sickness of the slave was known to him at the time of the execution of the act of sale. It is not easy to conclude, from the evidence in the case, that he knew the disease was an incurable one; and he had the plaintiff's assurance, that if it was a redhibitory one, it was warranted against; so that our sole inquiry is, was the disease a redhibitory one? Ailments or infirmities constitute redhibitory defects, when they are incurable by their nature. So that the slave subject thereto, is absolutely unfit for the services for which he is destined; or these services are so inconvenient, difficult, and interrupted, that it is to be presumed the buyer would not have bought her at all, if he had been acquainted with the defect; or that he would not have given so high a price, had he known that such a slave was subject to that sickness, or infirmity. Civ. Code. 358. art. 80. I understand this to mean, if the buyer knows the nature of the disease, i. e. that it is incurable. In the present case, the disease existed before the sale, and though curable in its origin, had now become incurable. This certainly was not known to the plaintiff; for who can believe, that if it was, he would have bought? He knew the slave to be sick, informed the vendor of it, and received for answer, that she was sold with a warranty of redhibitory diseases; among these, the law has classed incurable ones, such as that under which the slave labored. It appears to me, the parties contemplated that the vendee's claim would depend on the issue of the disease. I think we ought to affirm the judgment of the parish court.

Mathews, J. I concur in this opinion, for the reasons therein expressed. Judgment affirmed.

7.

HEPP v. PARKER. Jan. T. 1830. 20 Martin's Rep. 473.

is diseased,

feat his ac

it must be

Per Cur. Porter, J. This is a redhibitory action, in which Knowthere was judgment in the court of the first instance in favor of ledge in a purchaser, the plaintiff. The defendant appealed. The cause was submit- that a slave ted to a jury, and on the trial, the appellant took two bills of ex- will not deceptions. One of them was to the opinion of the court prevent- tion of reding a witness answering the following question: "How many days hibition: before the plaintiff signed the bill of sale was it that he came and shown he perused the bill of sale, as written in the records of G. R. Stringer, disease was Esq., notary public ?" We think the judge erred. The answer incurable, to the question could not, in any respect, contradict the act, not without knowing even its date; for non constat, whether the date was affixed when that, he the instrument was drawn out, or at the time it became a public bought the act by the signatures of the parties.

The object, declared in the bill of exceptions of putting this question, was to show that the plaintiff had the slave in possession, and was acquainted with him before he signed the bill of sale. The appellee urges, that if this were the object, it could not have, in any respect, weakened his case, or strengthened his adversary's, supposing the witness to have answered as the party calling expected. Because, whether the plaintiff knew of the fact or not, at the time of the purchase, he is still protected under the warranty. To this objection it has been answered, that the disease of which the slave died, was one of those which the law classes as an absolute vice of body; that consequently, the action can only be maintained under the 2496th article of the code, which confers it on the buyer, when the thing bought is either absolutely useless, or its use is so inconvenient and imperfect, that it must be supposed the buyer would not have purchased it, had he known of the vice; and that if the answer to the interrogatory would have induced the belief of the purchaser having a knowledge of the disease at the time he bought, then it was material it should be answered, because the presumption of ignorance, on which the law gives an action, would be destroyed. This argument has also been supported, by reference to the 2497th article of the code, which declares, that apparent objects, such as the buyer might have discerned by simple inspection, are not among the number of redhibitory vices. Knowledge that a slave was diseased at the time of the sale, and a knowledge that he was afflicted with an incurable disease, are two distinct things, and their effects on the right of the parties quite dissimilar.

knew the

or, that

chance of the slave's

recovery.

The same principle adopted in Kentucky.

It is almost incredible, that any person in his senses would buy property of this kind, and give a full price for it, unless he conceived he was protected by the warranty, and even then it is difficult to conceive any object in such a contract. If, indeed, as was said in the case of St. Romes and Porè, it appeared clearly, that the purchaser knew the nature and extent of the disease, and consented to purchase under all risks, the action of redhibition could not, perhaps, be maintained. But when the evidence is in the least degree equivocal, the presumption would be, that where a full price was given, the purchaser conceived the disease was other than incurable; one that would yield to medicine. It is established in the present instance, that the slave died of an abscess in his lungs. When the physician was first called in, which was seven or eight days after the date of the bill of sale, the negro was found to be afflicted with a cough, and difficulty of breathing. This cough existed at the time the contract was made, for it is in evidence that the defendant, when questioned in relation to it by the plaintiff, said, it was the remains of dysentery. Now, supposing the witness had established the fact of the plaintiff's having the slave in his possession some time before he signed the note, we do not see how it could have aided his defence. The presumption flowing from it would only have confirmed a fact proved by other testimony, and in relation to which there does not appear to have been any dispute; namely, that the plaintiff knew at the time he purchased the slave he was afflicted with a cough. We are clear this knowledge did not defeat his recourse in warranty, for there must not only be knowledge of a disease, but knowledge of one that is incurable, and of such a nature as to render the slave useless, or his use so inconvenient and imperfect, that the buyer bought under the hope or chance he might recover. 10 Martin's Rep. 220. Although, therefore, the judge might very properly have admitted the evidence, we do not see any possible iufluence it could have had in the cause which would authorize us to remand it for a new trial. Judgment affirmed.

8.

BROWNSTON V. CROPPER. Spring T. 1822. 1 Little's Rep. 173.

Brownston filed a bill against Cropper, alleging he purchased a negro of him, and she died in 16 days after; that she had been sick of an inveterate and chronic disease from the hour of her sale, and that he had discovered she was laboring under the same disease long

before the sale, to the knowledge of Cropper, who represented her to be sound and healthy, which induced him to purchase her. It appeared that the slave told Brownston at the time of the sale, that she was mortally sick, and could be of no service to him. The court held, that where the seller of a slave, represented her to be in good health, notwithstanding the slave should state her true situation, it would not be notice to him so as to discharge the seller from his responsibility for the misrepresentation, there being a strong indisposition in slaves to be sold, and they by stratagem to avoid a sale, may frequently feign sickness, and the purchaser may well disbelieve them, and rely on the word of the seller. The constitutional court of South Carolina decided directly the reverse. They held that in an action for a breach of warranty of soundness, the declarations of the slave in relation to the disease were admissible. 1 Harper's Rep. 39.

9.

SMITH V. ROWZEE. Spring T. 1821. 3 Marshall's Rep. 527.

a slave her

health is

Rowzee sold a negro girl to Smith. The contract was made at But if on Smith's house, he never having seen the girl. The next evening the sale of the girl was sent to Smith's house, from which place she was im- state of mediately taken by Bishop, who had purchased her of Smith, to concealed his own house, about eight miles distant. He was obliged to stop or misre presented, with her several times on the road, and finally was compelled to the purchaleave her at a neighboring house. She was immediately taken solved back to Smith's house, and the contract between Smith and Bishop rescinded. The girl remained at Smith's house, under the care of physicians, when she died. And Rowzee sued Bishop for the price agreed upon at the time of the sale. Verdict for the plaintiff. The defendant appealed.

Per Cur. Mills, J. The plaintiff was no doubt acquainted with the debilitated state of the slave when he sold her. She had just recovered from a fit of sickness, and the plaintiff sent her to the house of the defendant veiled, to conceal the loss of part of her bair by fever. He said nothing about her sick or dangerous state. If he concealed these things, he was guilty of concealing the truth, which absolved the appellant from all obligations to pay for her, or

ser is ab

from the

contract.

And there

is no implied war

if he gave a coloring to the facts relative to her condition, he was guilty of a misrepresentation.* Judgment reversed.

10.

EXECUTORS OF HART V. EDWARDS. May T. 1831. 2 Bailey's
Rep. 306.

Assumpsit on a promissory note, given for a slave.

The slave died

At the sale, the slave looked very ill, and the auctioneer gave ranty from notice, that "he had had the venerial, but was well, or nearly the price, where the well." The defendant gave $460.; and if he had been entirely purchaser is acquaint- well, would have been worth $30 or $40 more. seven days after the sale. Verdict for plaintiff. Motion for a new trial, on the ground that there was an implied warranty arising from the price.

ed with the defects.

Per Cur. Johnson, J. The defendant had notice, at the time he purchased the slave, that he was diseased; and the evidence shows, satisfactorily, that his death was the consequence of that disease, or its incidents. And if he thought proper to purchase, without a warranty against its consequences, he was bound by it. Motion denied.

* An express warranty excludes a prior one. Lamier v. Auld, 1 Murphy's Rep. 138. And no particular form of expression is required to make an express warranty. Osgood v. Lewis, 2 Har. & Gill's Rep. 495.; Bacon v. Brown, 3 Bibb's Rep. 35. And the jury are the proper judges whether the words amount to an express warranty or not. Ibid. Duffee v. Mason, 8 Cowen's Rep. 25. Borrekens v. Bevans, 3 Rawle's Rep. 32. Jackson v. Wetherell, 7 Serg. & Rawle's Rep. 480. There can be then no definite rule laid down as to what shall constitute an express warranty. As where the seller said, on the sale of a mare, she was safe, gentle, and kind, in harness, the court held it a representation, and not a waranty. Jackson v. Wetherell, 7 Serg. & Rawle's Rep. 480.; but where the seller said of a negro woman slave, that "she was of sound wind and limb, and free from all disease," the court held, that it was a warranty of the soundness of the slave. Cramer v. Bradshaw, 10 Johns Rep. 484. And where the seller of a colt said, "there is nothing the matter with the colt; it is well and sound, and will make a fine horse," the court said it might amount to a warranty, or it might be matter of opinion; and the jury must judge from all the circumstances of the case, and how the words were understood by the parties. Duffee v. Mason, 8 Cowen's Rep. 25.; Osgood et al. v. Lewis, 2 Har. & Gill's Rep. 495.; Borrekens v. Bevans et al., 3 Rawle's Rep. 23. And the rule seems to be, that in an express warranty of a chattel, it is immaterial whether the party making it knew it to to be false or not. Watts v. Mattingly, 1 Bibb's Rep. 244.