
    Oliver Palmes v. Bernard Kendig.
    In the redhibitory action, where it is shown’ that the slave was so sick at ajiospital as to render a bodily tender impossible, it is sufficient to show, that an offer, in writing, bad been made to return the slave.
    PPEAL from the Fourth District Court of NewjjOrleans, Price, J.
    
      M. M. Cohen, for plaintiff.
    
      Semmes & Labatt, for defendant and appellant.
   Buchanan, J.

This is an action of redhibition for sickness of a slave sold by defendant to plaintiff’s vendor, with full guarantee, within one year prior to the institution of suit. By the terms of the conveyance to plaintiff, ho was subrogated to his vendor’s action of warranty against defendant.

The existence of the redhibitory malady at the time of the sale, to the knowledge of defendant is proved.

The only question raised by the argument in this court, is the sufficiency of the tender made before suit instituted, as alleged in the petition.

The proof of this tender consists in two letters, written by plaintiff and his counsel. The delivery of the letter dated 30th of November, 1857, to defendant, on the day of its date, is admitted. It reads as follows :

New Orreans, November 30, 1857.
Mr. B. Kendig :
“ Sir — I now hereby tender to you the slave Clara, or Hager, purchased by me from II. R. Rhodes, to whom you sold her, by act passed before James Graham, Notary Public, on the 23d of December, 1856, fully guaranteed, and who subrogated me to all his rights and actions of warranty against you. Said slave is now at Dr. Stone’s hospital, subject to your order, and I am ready to deliver her to you at any time and place you may designate. I also ratify the letter of my counsel, M. M. Cohen, Esq., to you, under date of November 19,1857, claiming a rescission of sale, and a return to me of 'the purchase money, with interest, and all costs, damages and expenses, and tendering to return to you said slave.
“ Respectfully,” &e.”
The proof of tender is sufficient. It is proved by Dr. Anfoux’s testimony, and by the. documentary evidence introduced, that the slave was under treatment in Dr. Stone’s hospital, and so sick as to render a bodily tender of her to the defendant, out of the question, consistently with prudence or humanity. Cottle v. Wilson, 1 Au. 4 ; Dixon v. Chadwick, 11 An. 215.

Judgment affirmed, with costs.

Land, J., absent.  