
    DESDUNES vs. MILLER.
    East'n District.
    Jan. 1824
    When a jury find that a slave who has subsequently died, had a consumption at & before the time of the sale and transfer thereof, the court below may fairly presume that the disease was incurable.
    The courts of this state are not limitted to the determination of questions of law:-they may try issues of fact.
    Appeal from the court of the parish and city of New Orleans.
   Mathews, J.

delivered the opinion of the court. This suit is brought to recover the value of a certain female slave, described in the petition, on account of a redhibitory disease with which she is stated to have been afflicted at, and before the time of sale and delivery to the plaintiff. The answer of the defendant denies the right of the plaintiff to procede directly against him, alleging that he is only surety in the warranty expressed in the act of sale, and not principal. It contains also a general denial, and prayer, for a jury.

The cause was submitted to a jury in the court below who found a special verdict, on which judgement was rendered for the plaintiff and the defendant appealed.

The appellants counsel having in the course of argument abandoned his first plea of defence; we have only to examine his objection to the judgement of the inferior court, as not being supported by the verdict. The jury find that that the slave in question had the consumption at and before the time of the sale and transfer to the plaintiff, and that she died of that disease. This finding, the defendant insists, does not support the judgement thereon rendered, because the jury have not found that the disease was incurable in its nature. But as the jury do not negative the fact of its incurability, this from their finding and other evidence in the case, may have been fairly intended by the Judge.

The Judges of our courts, are not limited to the determination of issues of law alone, as they are in the courts of England, where the trial by jury prevail to the greatest extent; according to our system of jurisprudence, they may try issues of fact. They are bound to do so, if neither of the parties to a suit, pray for a jury. In rendering a judgement; on a special verdict, they would perhaps be authorized to extend much from the evidence to supply any defect in such verdict. In the present case the kind of disease, and death of the slave as a consequence thereof, are found; and from these facts the Judge, a quo, may well have concluded that the disease was incurable.

It is therefore ordered. adjudged, and decreed, that the judgment of the parish court be affirmed, with costs.

Moreau Lislet for the plaintiff, Hennen for the defendant.  