Thirdly. Did the They found all ly. If a defect existed, was it a material one? 25. SMITH V. MILLER. Fall T. 1812. 2 Bibb's Rep. 616. there is no warranty it must be a verred that ant knew of soundness. the defend the un The appellee sold to the appellant, a negro boy, evidenced by Where writing, in these words: "Rec'd of Wm. Smith, of Lexington, express $300 for a negro boy named Abram, which negro is sound and healthy, and I warrant the title of said boy against the claim or claims of every person whatever, as witness my hand this 26th of March, 1810." The appellant moved the court to instruct the jury, that if they were of opinion that the defendant sold the negro in the declaration mentioned to the appellant, with a warranty of his soundness, that the negro, at the time of the sale and warranty, was unsound, and of which unsoundness he afterwards died, that the appellant had a right to recover such damages as they should think he was entitled to from the evidence. The court refused to give the instruction, and the appellant appealed. Per Cur. Owsly, J. This bill of sale, which affirms that the negro is sound, does not amount to an express warranty of soundness. That the appellee did not intend to warrant the negro sound, we think evident from the writing. It contains an acknowledgment of the receipt of the money for which the negro was sold; a representation that he was sound, and an express warranty of title. Had the appellee intended to warrant the negro sound, it is most reasonable to suppose the warranty would have been so worded as to embrace it. Where there is no express warranty, but only an affirmation of soundness at the time of sale, in an action for a false affirmation, the declaration should charge that the vendor knew the article was unsound. Here there is no such averment ; and having declared on the warranty of soundness, when there is none, the judgment of the circuit court must be affirmed. Extent of 26. LEWIS V. COOPER. Feb. T. 1814. 1 Cook's Rep. 467. The court left the question undecided, whether the warranty of as to the in- title of a negro woman, would extend to the increase. a warranty crease. Generally. And the same rule applies to chattel. 27. GLASSCOCK V. WELLS. 1813. 1 Cook's Rep. 262.; S. P. The court held, that, upon a warranty, the vendor is liable for defects not known at the time of the sale: but he is not liable for unknown defects if he make no warranty. 28. WATERS V. MATTINGLY. Fall T. 1808. 1 Bibb's Rep. 244. The defendant sold the plaintiff a horse, and warranted him sound. It was proved that the horse was unsound, immediately any other after he came into the possession of the plaintiff. The court, Edwards, Ch. J, held, that where there was an express representation, which turns out untrue, it is immaterial whether the party making it knew it to be false, or not. Bibb. Prather de Pr. Dec. 153.; Pile v. Shannon, Har. 55.; Ferrin v. Taylor, 3 Cranch, 270. The same principle (was decided by Judge Cranch, in Stewart v. Johnson, June T. 1820, circuit court U. S., Washington, (MS.) Suit on. 29. HANCOCK V. SHIP. Spring T. 1829. 1 J. J. Marshall's Rep. 437. Per Cur. Robertson, Ch. J. The objection to the declaration is not valid. Although a written warranty be given, an action on the case may be sustained for fraud in the warranty. Such suits are not unusual. They are sustained by authority and principle. For the simple warranty suit must be brought "ex contractu," and of course must be covenant, if the warranty be in writing. But whether it be written or parol, suit for a fraud in making it, should be case ex delicto. (B.) OF THE WARRANTY OF MORAL QUALITIES. 1. XENES V. TAQUINTO et al. April T. 1829. 19 Martin's Louisiana Rep. 678. ness is a ground of tion. Per Cur. This is an action of redhibition to annul the sale of Drunkena slave, and recover part of the price for her, and to be exone- mental, not a physical rated from the payment of the balance due. The general issue defect, and was pleaded in the court of the first instance, and the defendant's is not a vendor cited in warranty. The cause was submitted to a jury redhibiwho found for the plaintiff. Judgment was rendered on this verdict against the defendant, and in his favor against Shift, from whom he had purchased. From this judgment, both the defendants and the party called in warranty, have appealed. The vice, to which the slave is charged in the petition to be subject, is habitual drunkenness. The evidence establishes satisfactorily the allegation. The only question, therefore, presented for our decision, is, whether the defect be such a one as authorizes the purchaser of a slave to it, to have the sale rescinded. The purchase was made since the enactment of the late amendments to our code, and must be governed by them. The 2496th article of that work defines redhibition to he, "the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed the buyer would not have purchased it had he known of the vice." The 2500th article divides the defects of slaves into two classes: vices of body, and vices of character. In the 2502d, some of the vices of the body are defined, and others are stated to be contained in the 2496th article, which we have already cited. But with regard to those of character, the next article expressly declares, that they are confined to cases where the slave has committed a capital crime, where he is convicted of theft, and where he is in the habit of running away. No reference is made, as in the article relating to their bodily defects, to the previous provision which mak es any disease a cause of redhibition, which renders the services of the slave so difficult and interrupted, that it is presumed the buyer would not have purchased had he been aware of them. But a frau cealment of And that the failure to make the reference did not proceed from inattention, is manifest by the 2506th article, which succeeds that just noticed, wherein the defects in other animals are extended to the cases supposed in the 2496th. So that the cause turns on the inquiry, is drunkenness a vice of body, or of character? Is it mental, or physical? We think it must be classed among the vices which our code denominates those of character. It has of late, we believe, been made a question by physiologists, whether the disposition to an immoderate use of ardent spirits, did not arise as much from physical temperament as from moral weakness. In cases of long indulgence in the habit, it is quite probable the body may require a continuance of the stimulus, and that the desire for the use of it may spring as much from physical lassitude, as from moral depravity. But on this subject the court has a safer guide than the conflicting opinions of medical men. By the ancient jurisprudence of the country, the vice of drunkenness was considered one of the mind. And the terms used in our legislation must be understood in the sense in which they were used in that jurisprudence, unless another meaning be expressly given to them by legislative authority. We conclude, then, that the allegation made in the petition does not furnish ground for setting aside the sale. It has been contended, that there was fraud in the defendant concealing from the plaintiff the defect to which the slave was addicted. But unless the vice was one which furnished ground for redhibition, there was no fraud in concealing it, or, in other words, there was no obligation in the seller to communicate it to the buyer. 2. GAILLARD V. LABAT et al. Dec. T. 1835. 9 Louisiana Rep. 17. The plaintiff alleged in his petition, that he had purchased of the dulent con- defendant a slave, named Marie Jeanne, and her daughter Cecilia, it, will be a for the price of $1000, for a house servant; that the defendant ground for rescinding knew that the slave was an habitual drunkard, and not worthy to be the con tract. trusted; and prays the sale may be avoided as fraudulent, and the defendant be compelled to refund the price. The jury found a verdict for the plaintiff, rescinding the sale, and restoring the slaves to the defendant, and requiring him to return the price. The defendant appealed. Per Cur. Bullard, J. This is not an action for redhibition. The plaintiff claims a recision of the contract, not on the ground that such a habit forms a redhibitory defeet in a slave, but on the alleged false assertion, on the part of the defendant, of the qualities of the slave in question, on a fraudulent concealment of her vices and defects, and he relies upon article 1841 of the Louisiana Code. But whether the defendant knew of the existence of the vice of drunkenness, and concealed it, is a question for the jury, and judgment rescinding the sale will be affirmed, when the verdict finding the fraud is not so unsupported by evidence as to authorize the court to disturb it. 3. CHRETIEN V. THEARD. June T. 1824. 14 Martin's Louisiana a Rep. 582. An allega tion that a slave was a thief, will evidence authorize that he was Per Cur. Porter, J. This is a redhibitory action, in which the plaintiff seeks to return slave he purchased from the defendant, and get back the price. The defect alleged is, that the slave is a thief, and addicted to robbery, and it is further charged, that the vendor knew he had those vices, at the time he sold him. The in the habit evidence establishes, very satisfactorily, that the slave was a thief of stealing. at the time he was sold ;-that he committed theft after he came into the possession of the plaintiff; and that the defendant well knew he was addicted to this vice at the time he sold him. Several grounds of defence have been presented in this court against the right of the petitioner to recover. First. That the allegations in the petition do not correspond with the proof. The first objection was supported by the counsel for defendant, on the ground that the petition charged the slave with being addicted to robbery, and that the evidence went to prove he was in the habit of stealing. A recurrence to the petition shows that this exception is not well founded. It does not merely charge that the slave was addicted to robbery. It avers also, that he was a thief; that he had a propensity to thieving, and it sets out a particular act of larceny. These allegations fully authorized the introduction of the evidence taken on the trial, and even if they did not, the defendant could not claim the benefit of the variance in this court, when he suffered the proof to be received without objection, in that of the first instance. |