
    No. 405.
    James McAllister v. Freeman Burton & Co.
    In a redhibitory action in which, it was proved that a slave purchased by the plaintiff on the 15th of December, 1859, was, at the time of the sale afflicted with “ chronic pleurisy,” of which he died on the 24th of July, i860 : ITeki — That plaintiff was entitled to recover back the price of the slave from his vendor. .. , '
    APPEAL from the District Court, Parish of Tensas, Farrar, J.
    
      L. M. Bay, and Snyder & Lewis, for plaintiff and appellant.
    
      L.! V. ■ Beeves and John Turnbull, for defendants and appellees.
   Hyman, C. J.

This is an action brought by plaintiff to recover from defendants the price he gave them for a slave, bought from them, because of latent defects in the body of the slave when bought.

Defendants sold the slave to plaintiff on the 15th December, 1859. On the 6th of May, 1860, the slave came in from the field complaining of' sickness, and Doctor Miller was immediately sent for to attend him. He continued sick until 24th July, 1860, when he died.

Witnesses for both plaintiff and defendants testified that the slave died of chronic pleurisy.

Dr. Miller testified that the slave had chronic pleurisy when he first called to see him ; that he had none of the symptoms of acute pleurisy : that after an acute attack of that disease a person may live for years before he is carried off by it; that if the slave had no fever with other symptoms of the acute pleurisy, from the time plaintiff bought him, 15th December,' 1859, to the 6th May, 1860, the disease of which he died must have existed in his person before he was bought by plaintiff from defendants.

Plaintiff’s overseer, who was constantly with the slave, testified that he had no fever and no symptoms of the acute pleurisy from the time plaintiff bought him, and that he was unable to do a hand’s labor from that time. Taking the testimony of these two witnesses as true, it is clear that the slave died of a disease which existed before plaintiff purchased him from defendants.

The only evidence adduced that does not fortify the testimony of Dr. Miller is that of Dr. McG-ruder. Dr. McGruder testified that the-slave-died of hydrothorax. This may be a symptom of chronic pleurisy. His reply to the seventh interrogatory propounded to him, is not an answer thereto, but evidently an attempt to evade an answer.

We do not think that his evidence should out-weigh that of other physicians who testified in this case.

The judgment of the District Court was in favor of defendants, and from it plaintiff has appealed.

The judgment is erroneous, and must be reversed. Civil Code 2495 and 2508. It is ordered, adjudged and decreed that the judgment of the' District Court be annulled and reversed, and it is further decreed that1 the plaintiff recover of defendants, jointly, the sum of eighteen hundred dollars, with five per centum per annum ¡merest thereon from the 2d'day. of June, 1860, till paid, and the costs of suit.

Howell, J.,

dissenting. In my opinion the decision in this cáse1 is'indirect conflict with the jurisprudence on this subject, as now settled, to the effect that a contract for the price or value of a slave cannot be enforced, and that no warranty in such contracts exists.

If the price cannot be recovered of the vendee, the vendor cannot be compelled to return the price or any part received by him.

The two actions rest upon the same principle, and neither can be maintained.

I think plaintiff’s demand, which rests upon the right of warranty, should be dismissed.  