
    
      CHRETIEN vs. THEARD.
    
    Appeal from the court of the third district.
    Allegation that a slave was a thief, will authorise evidence, he was in the habit of stealing.
    Stealing need not be accompanied with force to constitute a redhibitory defect.
    Prescription is interrupted by an action in which the plaintiff is nonsuited.
   Porter, J.

delivered the opinion of the court. This is a redhibitory action, in which the plaintiff seeks to return a 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.

An action founded on the same cause as the present one has been already before us. 11 Martin, 11. The plaintiff was there nonsuited, because he had not furnished proof that he brought suit within six months after he obtained the knowledge of the defect. The present record shews that he has fully removed this objection, and the evidence establishes very satisfactorily, that the slave was a thief 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.

East'n District.

June, 1824.

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.

Second'. That the vices complained of are not redhibitory.

Third: That the action is barred by prescription.

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 shews 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 authorised 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.

The second point of the defendant is, that the vice complained of is not a redhibitory one, that the stealing must be accompanied with force to constitute this defect.

If this construction be the true one, it will lead to the most inconvenient results, and open the door to great and numerous frauds. This consideration we are aware is not of much importance, if the law be clear and free from ambiguity ; but if otherwise, it is entitled to much weight, in aiding our conclusions as to the purport and true meaning of the statute.

The words of the law in the French text, are “ si Pesclave est adonné au vol:''-in the English “ if he is addicted to robbery .”

Vol is the generic term in the French language, for theft of every kind, and it is admitted embraces larceny. Robbery it is said means the offence known to our criminal law as such. And it is urged that the English version shews, that the word vol in the French, was used in the restricted sense of taking the property of another by force.

Our code was passed previous to the enactment of the constitution, and the legislature in adopting it, directed that the French and English texts must be taken together; and that they should mutually serve for the interpretation of each other. 2 Mart. Dig. 98.

Whenever therefore the expressions can be reconciled, and made harmonize with each other, it is the duty of those on whom the task of construing them is devolved, to do so. When they cannot, such a construction must be adopted, as does violence to neither, and gives effect to both.

Thus if the French part of the law, made epilipsey alone a redhibitory defect, and the English had "provided only for leprosy, we should hold that both these diseases constituted vices for which the sale could be annulled; because both were provided for, and because at that time, the legislative will, expressed in either language became a law. In the case of Touro vs. Cushing, decided at the last July term, this principle was applied to the 122d article of the code, 369. The text there presented two distinct ideas to the mind, and we thought a compliance with either, sufficient on the part of him who claimed the benefit of the law; otherwise as was there said, the statute in relation to that provision, would be a decoy instead of a beacon.

And where they are not entirely different, as in the case before us, where the word in one text, includes the meaning used in the other, and means something more ; we must on the same principle, take that which presents the most enlarged sense, because in doing so we give full effect to both clauses.

The last point is that of prescription.

On this head the counsel for defendant, refered to several authors who have written on the French law. According to them, prescription, is not interrupted by a suit in which the plaintiffs demand is rejected ; nor where there is a voluntary abandonment of the action. Pandecte francaises, vol. 7, 581, 582. Dunod traite de prescription 92. Denissart, vol. 3, 740.

It is unnecessary for us to go into the question, how the law stands in that country, or to enquire how much of the doctrine on which the appellant relys, depends on provisions particular to the French jurisprudence. By that of Spain, greater facilities were afforded the creditor, to interrupt prescription. According to the 3d partida, title 29, law 29, a simple demand of the debtor, in the presence of witnesses was sufficient. Why an action in a court of justice, altho’ not followed up to final judgment, should not have as much effect as a simple request which is not succeeded by a suit, is not perceived by us. Admitting however that it has not. Another provision of the law already cited declares, that prescription is interrupted by a suit, and we find nothing in that Jaw which makes any exception, or which goes to shew, that this interruption which is declared to result from a demand injustice, loses effect, because the action is not prosecuted to final judgment. Prescription says this law, ceases to run from the time suit is brought. Of this opinion must have been the compilers of our code, for in transcribing into it, the provisions of the Napoleon, on the subject of prescription, they omitted inserting the article 2247, which declares, that if the plaintiff desist from his suit, or if his demand be rejected, prescription will not be interrupted.

On the merits we see nothing to doubt the correctness of the judgment of the court of the first instance, and we do therefore order, adjudge and decree that its judgment be affirmed with costs.

Cuvillier for the plaintiff, Dennis for the defendant.  