exhibits great defects in the slave, but does not, in our opinion, amount to proof of madness; at all events, of its appearance within three days from the time of purchase. And there is no proof that he was subject to any mental derangement previous to that period. Considering the many frauds which are practised on purchasers, by professed dealers in this species of property, we have reluctantly come to a conclusion on the facts different from that at which the judge, a quo, arrived. But it is believed by us, that the plaintiffs have not sustained their claim for redhibition by such proof as is required by law. 10. ZARICO V. HABINE. March T. 1818. 5 Martin's Louisiana Rep. 372. dee cannot the recision of the sale, on account of a capital crime com the slave The plaintiff, as executrix to her late husband, caused the pro- The venperty of his estate to be sold at public auction, under the authority demand and directions of the court of probates, when the defendant, through an agent, bid for a negro man, was adjudged her, and immediately delivered to her said agent, who directed him to go to the defendant's. The negro, on his way, made his escape, and, being mitted by pursued, committed an assault, with intent to murder, for which immediatehe was tried and condemned to death, but afterwards pardoned ly after the and released. The defendant having refused to receive him, the present suit was brought against her. One of the grounds on which she resisted the plaintiff's demand, was, that if there was a sale, it ought to be annulled, on account of a redhibitory vice in the slave. There was judgment for the plaintiff, and the defendant appealed. Per Cur. Derbigny, J. Derbigny, J. We now come to the second plea of the appellant, to wit, the existence of a redhibitory vice in the property sold. The success of this plea rests upon the following circumstance: Immediately after the sale and delivery, this slave, instead of going where the appellant's agent sent him, ran off, was pursued, and committed an assault, for which he was condemned to death, and afterwards pardoned. From this the appellant concludes, that the slave had a redhibitory vice previous to the adjudication. To support this allegation, he relies on the following article of our code, as governing this case, to the exclusion of all testimony: "If the defect appears immediately after the sale, or within the three following days, it shall be presumed that said defect existed before the sale, or at the time it was made." This sale. What a a habit of way. provision seems to have been intended for cases of latent bodily defects, the origin of which is uncertain. But as the appellant insists upon its applicability to his case, let us see how it will bear the application. The vice, if any existed, was one of temper and disposition. Those are limited to three sorts: "Having been guilty of some capital crime, being addicted to robbery, or in the habit of running away." The first vice does not admit of the application of the rule, that a man has been guilty of a capital crime, and is not to be presumed from his subsequent conduct. The law does not speak of any such thing as the habit of committing crimes, but of a crime committed. The second vice has nothing to do with this case. The third, and last, is the habit of running away. This slave, it is said, ran off, instead of going where the appellant's agent had told him to go. Must this be received as a legal presumption that he was in the habit of running away? Shall a slave who changes masters, and runs off to avoid going with him, be presumed to be in the habit of running away? Surely no such presumption can arise from this fact. Supposing, then, the article relied on to be at all applicable to this kind of vice, still, the fact in this case does not authorize the presumption, so far as to render it unnecessary to support it by other proof, or to exclude contrary testimony. The district judge, therefore, acted correctly in admitting testimony as to the character of the slave; and that testimony having been perfectly satisfactory on the part of the plaintiff, the plea of the defendant must fail. Judgment affirmed. 11. ANDRY et al. v. For. July T. 1819. 7 Martin's Louisiana Per Cur. Martin, J. At the request of the defendant, a remounts to hearing has been had in this case, on the question whether Horunning a race and Boucaud, two of the slaves sold by the defendant to the plaintiffs, were really in the habit of running away, at the time of the sale, so as to entitle the plaintiffs to their redhibitory action. The fact was found against the defendant by the jury, in the parish court; and, although this circumstance is not conclusive on the appeal, it cannot fail to have some weight. Horace was purchased by the defendant in March, 1808, and his vendor then expressly excluded the legal warranty against such vices, which the law considers as redhibitory ones, viz. capital crimes, robbery, and the habit of running away. This appears by the bill of sale on re cord; and the vendor did declare, that Horace ran away from him, and was absent seven consecutive months; during which he went to New York, Liverpool, and Charleston, where he was arrested and brought to New Orleans; where, five weeks after, he sold him to the present defendant, informing him he was a runaway; and he was sold as such. It is in evidence, that Boucaud was brought to jail as a runaway before the sale to the plaintiff, and that he has since run away twice. In the sale of Boucaud to the defendant, the vendor warrants only against the maladies for which the law grants a redhibitory action. The counsel for the defendant thinks the jury and this court erred, in inferring from this testimony, that the slaves were in the habit of running away; that one single instance of running away is proven anteAs to Horace's rior to the sale, which cannot constitute a habit. trips to New York, to Liverpool, and Charleston, and an absence of seven months, which ended by his capture only; the circumstance of his being sold as a runaway; the information given by the defendant's vendor, that he was a runaway, justify, in our opinion, the conclusion which the jury and this court have taken. As to Boucaud, the circumstances of his having been purchased by the defendant, with a simple warranty of the redhibitory maladies, of his having been committed to jail as a runaway once, would But he ran away twice, not authorize the same conclusion. within a very few days after the plaintiffs purchased him, which raises a presumption, when coupled with the preceding facts, that the habit of running away existed before the sale. Indeed, the cases of these slaves are not easily to be distinguished from that of Macarty v. Bagneries, 1 Martin's Rep. 149. There, there was no evidence of any repeated act of running away before the sale, but the slave had been kept several months in jail, and not liberated therefrom till the sale, and ran away soon after. Thus, Horace's voyages to New York, Liverpool, and Charleston, and the declaration of his then master, excite as much apprehension and alarm, as evidence of three ordinary acts of running away. It is therefore ordered, adjudged, and decreed, that the judgment of this court in this case be certified to the parish court, as if no rehearing had been granted. Although several slaves be bought together, and for single a price, the sale will not be re scinded for all, if any number less than the whole have any ry defect. 12. ANDRY et al. v. Fox. June T. 1819. 6 Martin's Louisiana Rep. 689. The plaintiff's bought from the defendant nine slaves, for $10,500, payable in their note at one year. Six of them having successively ran away, they brought the present suit for the recision of the sale, alleging, that the slaves were addicted to running away, in the knowledge of the defendant, prior to the sale. There was judgment for the recision of the sale as to the six slaves who ran away, and the defendant was condemned to the payment of $6,500. Both parties appealed. Per Cur. Martin, J. It is true, the slaves were not sold separedhibito- rately, and for distinct prices; and after the sale the vendees refused to retain any of them, and rescind the sale for the others; but insisted on an entire compliance with, or an absolute recision of the contract. These circumstances do not, however, appear to us sufficient to authorize the vendees in demanding the recision of the sale of all the slaves, on account of a redhibitory defect in one or more of them. For they did not constitute a whole, as a company of comedians, or a span of horses, in which the value of each of the component parts is increased by its union to the rest. It is true, after the sale, the vendees declared their willingness to annul it in toto, and refused to do so partially; a circumstance, which is presented to us as giving rise to the presumption, that they would not have agreed to the purchase of any number of these slaves, less than the whole. The presumption, however, appears to us too slight to be received as evidence. We therefore conclude, that the parish court did not err in refusing to rescind the sale in toto. The habit of running away is a redhibitory vice. Civ. Code. 358. art 79. A warranty against it is, therefore, of the nature of the contract of sale of slaves, i. e. it needs not be expressed in the deed. Hence the silence of the vendor in this case, as to this warranty, does not prevent him from being bound thereto. Neither does it appear to us that the circumstance of his having disclosed to his vendees the names of his own vendors, and referred, in his act of sale, to those of the latter, in any degree lessens his liability, This warranty, however, not being of the essence of the contract, may be excluded by the agreement of the parties. But the agreement must be proven, and the exclusion must be a fair one; that is to say, the vendor must be ignorant of, or disclose the existence of the vice. In the present case, it is clear, that the disposition of six of these slaves to run away was known to the vendor, and that he did not communicate it to the vendees. The understanding of the parties, that the slaves should remain on trial during a fortnight, with the vendees, at the risk of the vendor, in case they ran away, does not enable us to conclude, that the intention of the parties was, that if after that period, they, or any of them ran away, and the vendees could prove a previous habit of running away, they should not avail themselves of the legal warranty. The existence of this habit in the six slaves, of whom the sale is rescinded by the judgment of the parish court, clearly appears from the evidence on the record, particularly the deposition of the jailor, and the orders of the mayor. The defendant was bound, at the inception of the suit, to reimburse the price of these slaves; but this price was not fixed by the parties, and required to be liquidated. The parish court, therefore, erred in allowing interest from the date of the judicial demand. But no hire can be allowed. Both parties complain of the valuation made in the parish court, the vendor thinking it extravagant, and the vendees insufficient. Perhaps this is the best evidence of its correctness. It does not appear to us so materially incorrect as to authorize our interference. It is, therefore, ordered, adjudged, and decreed, that the judgment of the parish court be annulled, avoided, and reversed; and this court, proceeding to render such a judgment as, in its opinion, ought to have been rendered in the parish court, it is ordered, adjudged, and decreed, that the sale of the negroes, Lindor, Tony, Sunday, Isaac, Horace and Boucaud, be rescinded, and made null and void; and that the plaintiffs do recover from the defendant the sum of six thousand five hundred dollars, with costs, in the parish court, and that the plaintiff's pay costs in this court. 13. CHRETIEN V. THEARD. June T. 1824. 14 Martin's Louisiana accompa force to Per Cur. Porter, J. This is a redhibitory action, in which the Stealing plaintiff seeks to return a slave he purchased from the defendant, need not be and get back the price. The defect alleged, is, that the slave is a nied with thief, and addicted to robbery. And it is further charged, that the constitute a vendor knew he had those vices, at the time he sold him. Several grounds of defence have been presented in this court against the redhibitory defect |