
    
      ANDRY & AL. vs. FOY.
    
    
      . In this case, the court pronounced judgment, at June term. See the preceding volume.
    
    Pormerjudg? ed.
    
      Mazur eau, on an application for a re hearing. The first question to be decided between the parties was : Is the defendant by the manner in which the sale was made, under the circumstances disclosed by the testimony and after the plaintiffs’ own allegations, bound to warrant the redhibitory vices ?
    The court in examining this question lay it dówu as a principle of law, susceptible of no exception, that the vendor must be ignorant of the existence of the vice or disclose it to the vendee, to exclude the warranty, and hold that a in the present case, it is clear that the dispo sition of the slaves sold, to run away, was known to the vendor and he did not disclose it.7i
    On this decision we beg leave to represent, that whenever the vendee, at the time of the salé, knew or had it in his power to know, with facility, the vice or defect complained of, the law excludes the warranty.
    This exception is founded Upon the rule: «Damnum quod quis suá culpa sentit, non vide-tur sentiré.” S he only object oí the law being to prevent the vendee from being deceived by the vendor. “ JSTe emptor decipiatur,” says the Roman law. ff- 21, 1, 1, §6.
    
      JVo se puede pedir la redhibitoria sabiendo el comprador el vicio de la cosa que compro al tiempo de la venta, o siendo apparente en ella, aunque el vendedor no se le diga. Cuna Phil. 1, 13, $. 29■ Pothier teaches the sa ,<e doctrine, and says that vices, which may be easily (fa ilementJ known, cannot be the foundation of redhibitory action. In such a case, says he, Facheteur est presume en avoir en connais-sanee et avoir bien voulu acheter la chose avec ce vice, par consequent n’avoir souffert aucmi tort; tmm volenti non fit injuria. Et quund meme il ne Faurait pas connue, il ne serait pas recevable d se plaindre du tort qu’il souffre de ce contrat i%c. Contrat de Vente, n. £507, 808, This doctrine is perfectly applicable to the present case : a careful examination of the pro-ceeflings ami of the evidence? will demonstrate that it depended entirely on the vendees to know the vice complained of. 2. The plaintiffs cannot have been ignorant of the vice. The vendor in his bill of sate recited the different deeds by virtue of which he was possessed of the slaves; the names of the persons who had sold them to him ; the dates of the deeds ; the names of the different notaries public, in whose offices they had been passed, &c. and in some of those deeds, the vice complained of is mentioned as to three of the slaves.
    The vendees, in their petition, have alledged and stated that “ prior to the sale made to them, that is, when the vendor purchased the slaves, they were notoriously bad characters, addicted to every sort of vice or defect and in the habit of running away.” ⅛
    Su’éh fac s being known, if the exception contained in the Curia and Pothier be'correct and well understood, we contend, that the action of the vendees cannot be maintained; for* if the bad character of the slaves and their habit of running away were matter of notoriety, there was no necessity to disclose them; they were, they must have been* known to the vendees.
    
      We sav a thing is notoriously known to . ' . ....... nave sucjh a vice or quality, when it is so known to all the people Off the place, in which the thing is. Now the plaintiffs are part of the people among whom the slaves were. 'The consequence is that the vices of the slaves were notorious to them as well as all the rest of the community.
    The definition of the word .notorie.té, as found in the Repertoire ie Jurisprudence, shews the correctness of this argument. JVotorieté: ce mot se dit, en general, de ce qui est connu publiquement. Les jurisconsultes apn'l-'-nt notorieté de fait celle qui est fondée sue uve certaine croyauce publique. 43 Guyot, 324.
    According; to this definition we see that the plaintiffs’ allegation amounts to this : “ Prior to our purchase, it was publicly lenown, it was of public belief, in New Orleans, that the slaves, we have bought, were addicted to every sort of vice or defect aiid in the habit of running away,” and we vvould believe that men in such situations, cannot be said to have been deceived or be heard.
    The second question to be examined was (( does the evidence support the action as to all the slaves, for which the court below ordered the gale to be rescinded?”
    
      To decide it a previous knowledge of the . . law was necessary.
    The law says, it is true, that the vice of running away, in slaves, is a redhibitory vice, but it also says that the vice consists of the habit of so 'running, prior to the sale. Civil Code, 359, art. 76, & 79. Partida 5, 5, 64.
    Now, I would beg leave to observe that out of the six slaves, which are ordered to be taken back by the vendor in this case, there are two who are not proven, by the evidence, to have been in the habit of running away prior to the sale, to wit: Horace, about 14 years old, at the time of the sale, who prior to it had. it is said, runaway once and no more who, since the sate, has never left the vendees’ house or plantation. And Boucaud, who is proven to have runaway only twice, before the sale and that too, in four years.
    
    If a gentleman should happen to get in liquor once or twice in four -years, would any person pretend to say that he is in the habit of getting drunk? If not, why should it be said that Horace and Boucaud were, prior to the sale, in the habit of running away?
    
      L’habitude est un penchant acquis par Vexer-cise des m ernes actions. Encyclopedic, verbo Habituder
    
    
      T1 e judgment says, “The existence of the habit of running away, prior to the sale to ine plaintiffs, is sufficiently proven by the bills of sale to the vendor, the deposition of Lamothe and the orders of the mayor,” &c.
    Upon this point, I pray to remind the court, 1. That the bills of sale to the vendor shew the existence of the vice as to three of the slaves sold, and not as to the six ordered to be retaken by the vendor ; and that neither Horace nor Boucaud is in the said deeds of sale, represented as .being; in the habit of running away. Sd. That, from the deposition of Ln= mothe and the orders of the mayor, nothing appears, as to Horace or Boncaud. except that the latter did run away twice in four years prior to the sale.
    The third question was relative to the sum which the vendor was to reimburse to the ven-dees in case he was bound to warrant the vice of running away.
    The court in examining it say, “ Both parties complain of the valuation made in the parish court, the vendor thinking it extravag nt, the vendees insufficient; perhaps this is the best evidence of its correctness ; it does not appear to us so materially incorrect, &c.’?
    
      This argument might be easily retorted by 23 ' . saving;; “The judgment must, be very bad since none of the parties is satisfied with if.” The cir-u instance of both parties complaining of the judgment can never, in my humble opinion, be an evidence of its correctness ; all that can be presumed from it is that the judge acted with impartiality.
    
    At any rate, the question was not whether the valuation appeared correct, but whether the judge who made it had the right to make it ill the manner it was made : and on this point I beg leave to recall to the mind of the court that I have shewn, that the judge had no right to make an;, valuation, but was obliged to decree the sum to be reimbursed according to the testimony ; and I should think that the will or caprice of men ought1 not to be substituted to the sacred will of the law. Partida, 3, 16, 40.
    The last question was whether any hire was to be allowed for the slaves for which the sale is rescinded during the time they have been in the possession of the vendees.
    The court have decided that no hire can he allow ed to the vendor.
    On this part of the judgment I beg leave to sepreseut that he is entitled by law to the hire of the negroes, in that situation. Redhibiéndose la cosa ha de ser volviéndola al vendor, con mas lo que se hubiere deteriorado or diminuido, . y sus aumento, accessiones, partes, jrutos y reditos, y alquileres, 8¿c. Curia Philipica, i, 13, M. 37.
    One of the slaves, Horace, ordered to be retaken has constantly been and still is on the vendees’ plantation, the five others have been kept by them for nearly three months after the sale and prior to their action.
    The vendor must certainly be paid for the services the slaves have rendered to or performed on the vendees’ plantation.
    Finally it appears, from the sentence of this court, that the judgment of the court below was reversed, as to the Interest, on the only ground that, the price to be reimbursed was not fixed between the parties ; and that no interest being allowed, no hire can be allowed. But I would observe that had the price been fixed, no interest could have been allowed. Interest is given bylaw to indemnify the vendee for the use which the vendor has had of the purchase money. Therefore as, in this case, the vendees had not paid the purchase money down, at the time of the sale, but on the contrary had given their •note for it, payable 'one year after, all they were entitled to was a restoration of their note, and security from the vendor, that at the same period fixed for its payment he would pay them the amount fixed for the price of the particular negroes he was obliged to retake; but no interest was due.
    A re-heaving was granted on the second point only. The plaintiffs’ counsel offered no new argument and the defendant’s relied on those urged above.
   Martin, J.

delivered the opinion of the court. At the request of the defendant, a rehearing has been liad, in this case, on the question whether Horace 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 irt March 1818, and his vendor then expressly ex-eluded the legal warranty against such vices, which the law considers as redhibitory ones, vjz. capital crimes, robbery and the habit of running away. This appears by the bill of sale on record: and the very 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 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 rum ning away — that one single instance of running away is proven anterior to the sale, which cannot constitute a habit.

As to Horace, trips to New York, ⅜^> 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 opm.on the conclusion which the jury and this court % , • have taken. ’

As to Boucaud, the circumstance 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 not authorize the same conclusion. But he ran away twice, 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 theses slaves are not easily to be distinguished from that of Macarty vs. Bagneries, 1 Martin, 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.  