
    CASTELLANO vs. PEILLON.
    Appeal from the court of the parish and city of New-Orleans.
    Although the clause of warranty relates to a defect of title only, it is not to be presumed that the parties did intend there should be no warranty, in regard to red-hibitory defects.
   Porter, J.

delivered the opinion of the court. This is a redhibitory action, the object of which is to recover the price paid for a slave. The petitioner states that he purchased from the defendant, a negro man named Lewis, who had at the time of sale, the habit of running away; and that shortly after the purchase he absconded, and has not since been heard of, notwithstanding every possible search has been made for him.

East'n District.

May, 1824.

The criminality of a witness cannot be proven otherwise than by the record of his conviction.

The vendor is affected by a judgment against the vendee.

The vendee may recover against his warrantor, without returning the slave, if he be runaway.

The defendant pleaded the general issue, and prayed that his vendor Henry Leslie, should, be cited in warranty.

Leslie appeared, and answered by denying all the facts in the petition; and all those in the defendant's answer, which went to make him responsible.

On the issues thus joined, testimony, oral and written, was given in the court below; and the jury found a verdict against the defendant in favour of the plaintiff; and for the defendant against the party cited in warranty. The court having refused a new trial, and given judgment pursuant to the finding of the jury, Leslie appealed.

A variety of questions have been raised on the argument in this court, none of which appear to us to offer much difficulty in the solution.

The first is, that by the act of sale, Leslie did not warrant the slave against redhibitory vices and defects. This position is endeavoured to be maintained by a reference to the conveyance, in which the only clause of warranty is, "that the said bargained premises unto the said Stephen Peillon, my heirs, executors, and assigns, from and against all persons, shall and will defend by these presents.” From the silence in the instrument as to any other defect but that of title, it is argued that it must he presumed it was the intention of the parties that the vendor should not be responsible for redhibitory vices. It is the opinion of the court, that this presumption is not strong enough to release the seller from the warranty which the law raises from the sale. In relation to defects of this kind, the code provides, that the buyer may have the sale can-celled, “unless the seller has stipulated that he should be under no kind of warranty.” Civil Code, 356, art. 68.

Considering therefore the first vendor as responsible, and proceeding to examine the case in the order it appears on record; the next question presented for decision, grows out of a refusal of the judge to permit a witness of defendant’s to discredit one of the plaintiff's, by proving that he had been imprisoned in New-York, in consequence of condemnation for an infamous crime. The judge thought the testimony of the witness was not the best evidence the nature of the case would admit of, and in that opinion we entirely concur. The conviction and judgment should have been proved by a copy of the record. Phillips's Evidence (ed. 1821,) 24.

The appellant urges the judgment should be reversed, and the cause sent back for a new trial, because evidence was permitted to go to the jury which was taken between the plaintiff and original defendant, before he was cited in warranty, and became a party to the suit.

The whole of the argument of counsel on this point, seems to proceed on the idea that the vendor, cited in warranty, was a third party in relation to his vendee, and could not be affected by any tiling which he did in the defence of the cause. But this is clearly a misapprehension of the law, for there is such a privity between them that the vendor is affected by the judgment rendered against the buyer, and upon the production of it he is bound to make good his warranty, unless he can shew that it has been obtained by fraud or collusion, or that matters of defence which he could use, were not employed on the trial. C. Code, 356, 64. If the judgment then, which might have been given between these parties, could have had this effect against the warrantor, without at all citing him; so must all the proceedings on which that judgment was rendered. And the only question here is, whether he was not cited sufficiently in time, to shew on the trial, that proper defence was not made, or whether he should not have the opportunity of establishing this in another action, where his vendee sued him. We think he ought to have done it in the investigation below; ample time was afforded him-he was made a party a few days after the commencement of the suit, and after taking the chance of a verdict in his favour, he cannot be permitted to urge this exception.

The habit of running away has been found by the verdict of the jury, and from all the evidence in the case, we cannot take upon us to say that they have erred.

The position that the judgment was erroneous, because the plaintiff was not decreed to surrender the slave, has next to be examined. It is true as was argued, that redhibition means annulling the sale; the seller getting back the thing sold, and the purchaser receiving the price which he paid; and ordinarily the purchaser, to maintain the action, ought to offer to return the thing with the fruits. Civil Code, 356. Curia Philip. lib. 1, cap. 13, no. 1. Pothier, traite du vente, no. 217. To this rule there are necessarily exceptions; where the thing is no longer in existence, and hasceased to be so in consequence of the vice or defect, which forms the ground of redhibition, as if a horse or a slave died of the disease under which he was labouring at the time of sale. Pothier, traite du vente, no. 220. Therefis the same reason for recognizing the same rule, when the buyer is unable to return a thing, though still living, in consequence of the vice inherent in it; as in the case before us, where the slave has absconded, and cannot be found. Otherwise the right of the buyer would diminish, in proportion as the injury increased. If the slave runaway, and was caught again, the purchaser could have his action of redhibibition; but if he were so expert in the habit, that he eluded all search, and was lost entirely, the owner would be without remedy.

The question is, whether sufficient evidence was offered that the slave had runaway, and was not in the plaintiff's possession. We think it was proved by as good evidence as the nature of the case was susceptible of, and that the jury did not err in finding it affirmatively.

It is complained that there was error, in decreeing the first vendor to pay, not the price which he sold the slave for, but that which his vendee obtained for him, and on this point we agree with the appellant. The very definition of this action is, to replace the parties in the situation they were previous to the contract. Here more was done. It is true that to accomplish this, damages may be given, but to enable the court to decree them, they should be proved; and no evidence of this kind appears on record, unless we should consider as such, the defendant being deprived of the profit he made by selling the slave. This sum given by the judgment, was not found by the jury, but was a conclusion of the judge from the verdict.

We think he erred, and do therefore order, adjudge and decree, that the judgment of the parish court be annulled, avoided and reversed, and it is further adjudged and decreed, that the sales of the slave, mentioned in the petition, from Peillon to Castellano, and from Leslie to Peillon, be rescinded and annulled. That the plaintiff do recover from the defendant the sum of six hundred dollars, with interest from judicial demand; and that the defendant do recover from his vendor Leslie, cited in warranty, the sum of five hundred and fifty dollars, with interest from the time he was notified to appear and defend this action; and it is also ordered and decred that the said Leslie pay the costs in the court of the first in stance, and the defendant those of appeal.

Dennis, for the plaintiff, Morse, for the defendant.  