
    Athalie Soubie v. Marie Madeleine Evelina Sougeron.
    To succeed in a redhibitory action, the purchaser must havg taken such care of tty thing sold, as might be expected from a prudent father of a family.
    Action to rescind the sale, and recover the price of a slave alleged to be affected with a redhibitory disease. On the trial it was proved, that the slave was sent by plaintiff to a hospital about fifteen months after the institution of the suit, in a dying condition, where she expired six or seven days after. There was no evidence, that she had ever been attended by a physician. Held, that it is not enough to show the existence of the disease, at the time of the sale ; that to enable the plaintiff to recover, it should have been shown, that the slave had received proper medical treatment.
    Appeal from the District Court of the First District, Buchanan, J.
   Morphy, J.

This action was brought on the 8th of April, 1839, to annul the sale, and recover the. price, of a negro girl named Angelina, bought of the defendant, on the 16th of February, 1839, and alleged to have been then laboring under a pulmonary consumption, which existed long before the sale. The defendant specially denies, that the slave was at the time of the sale, or before, affected with any redhibitory malady. There was a judgment below in favor of the plaintiff, from which this appeal was taken.

The .evidence shows, that o.n the 21st of July, 1840, that is, more than seventeen months after the sale, the girl Angelina was sent to. the Charity Hospital, where she died six or seven days after. When she was sent there^ §he appeared to the house surgeon to be laboring under a pulmonary consumption, and already in a desperate condition, but he did not examine her body after her death. A witness living at the. plaintiff ?s house, and produced b.y her, testifies, that ihe slave, had been §ick about six months, or more, before her death, and that he never saw any. physician called in to attend on her. This agrees with the statement of one of the defendant’s witnesses, Gauthier, who saw Angelina, about nine months after the sale; she then appeared to. him not only well, but be thought, that she had grown fatter than she was before. There is no direct evidence, that the disease existed before the sale to the plaintiff, or that it made its appearance within three days after the sale, so as to create a legal presumption of its pre-existence ; but great reliance seems to be placed on a certificate obtained from two gentlemen of the faculty,. It is in the following words, to wit:

Nile O.rléans, ce. 26. Mars, 1839,.
Nous, so.ussignés, docteurs en médecine de la faculté de Paris, appelés par Mademoiselle Soubie pour examiner sa négresse Angelina, et consta^er sop é.tat, certifions avoir mis daps nos. recherches tout le soin dont nous étiops capablas, et avoiir reconnu diez sa dite négresse un ensemble de phénpménes dont, la reunion constilue Faffe.ctiop dés.ignée par les. auteurs sous le nom de Chlorose. Cette, maladie para,it consister dans, une altération particuliére du sang, et ne s.e manifesté qu’á la suite de circonstances dont Faction ne devient sensible qu’aprés un terns généralement assez long. En outre sa toux qui existe actuellement, et qui, au dire de la malade, se renouvelle á la moindre occasion, doit faire craindre pour elle le développement d’une altération grave du poumon, dont la marche seraij d’autant plus rapide qu’ elle serait produite dans. Ies conditions que nops spvons étre ex-trémement favorables á Fexistence de cette maladie.
“Des fails que nous venons de dé.poser, il nous pavail ra,isonnable d’établir:
“ Que l’état. morbide général dontil vient d’etre fait mention, remonte á une epoque que nous ne saurions, fixer rigorepsement, mais qui nous semble excéder un an :
“ Qué sa toux, que nous avons dit se reproduire de terns á autre, est d’un fácheux augure, en tant que développée dans les circonstances actuelles, elle nous paraít tendre vejs une maladie dont le résultat serait pour la négresse malade une mort inévilable.
“P. A. Lambert, D. M. P.
“ Wm. Guesnard, D. M. P.”

After reading over several times this document, which, it must be admitted, is drawn up secumdum artem, we have been unable to discover in it any thing showing the actual existence, at its date, of a pulmonary consumption in the slave Angelina. The learned gentlemen certify, that she had the Chlorosis, a well known disease of females, commonly called the green sickness. They express the opinion, that she had been laboring under this complaint for a year back, and that, from symptoms which they describe, it may lead to an affection or disease which would be followed by death. This certificate, which by consent was admitted as evidence, does not satisfy us, that the slave had, before the sale to plaintiff, the disease of which she died seventeen months after ; and in this opinion we are confirmed by the testimony of witnesses who saw, and knew the girl for some time before she was sold. One of them, Dr. P. F. Thomas, who was the defendant’s family physician, testifies, that, in 1838, or thereabouts, he was called upon to see 'this girl who was troubled with worms, and that he paid her only a few visits as she was not long sick; that after she was sold to the plaintiff, whose physician he had also been for some time, she (the plaintiff,) called one day at his office, and asked him whether he would deliver to her a certificate about the health of Angelina, which could enable her to return the slave to the defendant, and that she would pay him well for it. He replied, that he was not in the habit of making such bargains, and begged her to leave his office, remarking, at the same time, that he had seen the girl before, and never knew her to be subject to any redhibitory disease. But even admitting the chlorosis to be a redhibitory malady, or to have led to the disease of which the slave died, the course which the plaintiff appears to have pursued, should in our opinion, preclude her from recovering. A few days after obtaining the certificate so much relied on, she brought the present suit. From that time up to the 21st of July, 1840, when she sent the girl to the Charity Hospital in a dying condition, she has given no account of her, nor has it been shown, that she was ever attended by a physician. Had the slave received proper medical treatment, the disease of which she died might not have been engendered, or might not have had a fatal termination. To succeed in a redhibitory action, it is not enough to obtain from professional gentlemen well written certificates, or even to show the existence of a disease at the time of the sale ; the purchaser is bound to take such care of the thing sold, which he intends to return, as might be expected from a prudent father of a family. 1 Robinson, 46. The plaintiff is the less excusable, as she was cautioned by the physicians of the necessity of care and attention, to avert the disease with which the slave was threatened.

W. S. Upton, for the plaintiff.

Bodin, for the appellant.

It is, therefore, ordered, that the judgment of the District Court .be avoided and reversed, and that ours be for the defendant, with costs in both courts.  