
    Harvey v. Kendall.
    Where a disease with which a slave was affected at the time of the sale terminates fatally within, three months thereafter, without any fault of the purchaser; and the evidence shows .that both the vendor andv,eridee were ignorant of its existence at the time of the sale,-the vqpdor will bo hound only to restore the price, and to reimburse the expenses occasioned by the.sale apd those incurred for the preservation of the thing sold; the cost of a post ?w.ortef(i examination, and the expenses of interment, aro not a part of the charges for which ho is liable. C. ¡Q. 3500.
    Where the purchaser of a slave for cash-sues to recover back the amount paid by him, with damages, o,p the ground qf .the death of -the slave from a redhibitory disease with which he was affected at the .time of the sale, .the vendee will not be allowed any thing for the serví' .ces.of the slave, .the ipse, of the flioney being .an ..ofisett to his services.
    APPEAL from-the First District idourt of Nn.w Orleans, McHenry, J. The facts pf this case are seated in -the opinion infra,.
    
    
      Gollens, for the plaintiff,
    contended thattfie point-,to bedocided,ina(?ase like this, is not .whether the disease was or .not possibly .curable, but whether or not it .existed ,at .the time of the sale, and was of such'a nature as is contemplated by .art. 249G ,of thefii-v. Code. The old Code required that .the inhibitory disease should be in its nature incurable; ¡but w.e .are now governed by a more practical .ppd rational rule. 7 La. 519.
    
      Hunt and Har.t,, .for the appellant,
    cited Senrpurn v. Bosquet, 15 La. 511; Kipcrv. Hutall.,i Rob. £6; Palmer .v. Taylor, lb. 412 ; ,Soubie v. Sougeron, 5 lb. 1-50; .arguing .that.the vendor was not liable as the disenso was curable, and ¡that the ¡purchaser failed to procure medical assistance, .and to bestow on the .slave the ¡care.and .attention-,required by la,w.
   The judgment of ¡the,court was pronounced by

King, J.

This action is instituted to recover theprice¡paid by the plaintiff ¡for a -slave., who is charged to have died of a redhibitory disease with which he was affected prior to, .and a.t the date .of, the sale. A further .sum is also .claimed for expenses incurred for the ¡preservation of th® slave, for,an autopsy, .and for th® Interment. There was a judgment .against .the defendant Kendall, ,fro,m which he has appealed.

The evidence shows that the slave in question remained in .the possession of ,th® plaintiff,fo.r seventy-one days after the sale, .apparently in perfect health, .and.performing his usual labor wjtho.ut .interruption. At .the expiration of that .time he .reported himse.lf sick. The symptoms which manifested themselves were so slight, .that the ¡plaintiff’s husband, .after conferring with ,o.ne of his .neighbors who was at the time present, considered.it doubtful whether the slave was really sick, and concluded .that it was unnecessary to call in medical aid. T.he slave was ¡placed jn the plantation hospital under the.care of a ,nurse, and W.ithin less (than forty-eight houi;s after .he announced his illness, died, no alarming symptoms.havingmanifested,.themselves until within.a few moments previous .to his dissolution. A post mortem, .examination was made by two .physicians, who .discoveredfhe .existence .of a,chronic.affection .of the liver, to which they .ascr.ibethe.sudden death, and which, in their opinion, must have .existed for some time previous to tRe sale. Other physicians, w.ho were not .present pt the.autopsy, were.also examined as witnesses, and, as usually occurs.o.n such occasions, some diversity .of medical opinion was expressed. The conflict ,of testimony, however, is not such as to leave any .doubt that the cause of the death was discovered. We think it is satisfactorily shown that the slave was affected with a chronic complaint at the date of the sale, of -which he subsequently died, .without the fault or negligence of ¡the owner. Some importance has been attached to the fact, that several o,f ¡the physicians declare that the disease was not incurable in its nature, and might have been overcome if timely medical aid had beep called in, and that, in fhe present instance, the patient was not subjected to treatment. The disease is described by all of the witnesses as being .slow in,its .progress, and, in the present instance, was so insidious in its approaches, that it manifested itself by no external symptoms, by no suffering of any kind, which-was ever communicated to the owner, and never for a moment interrupted the labor of the slave-until within a few hours previous to his death. Iiow, under these circumstances., was it possible for the owner to have caused the slave to be treated for a disease, which was only revealed by an examination after death. ’The failure to call in a physician when the slave announced his .illness, arose from the same .cause. No symptoms manifested themselves which excited.apprehensions forthe slave’s safety, or announced a malady which seemed to ¡require the skill of a physician.

The whole tenor of .the testimony shows that the defendant must 'have been ignorant, at the time of ¡the sale, of the disease under which the slave labored, and so thought the judge ,of the court below. He is consequently only bound to restore the price, and ¡to reimburse the .expenses occasioned by the sale and incurred for the preservation of the thing. He has, however, been decreed to pay §60, the Amount disbursed for the examination after death, and for expenses of interment. These are not among the charges for which the defendant is liable. C. C. art. 2509. Fuentes v. Caballero, 1 An. Rep. 27. In this respect the judgment must.be corrected.

The defendant contends that he should -be allowed compensation for the services of the slave while .in the plaintiff’s possession. The sale was for cash. The use of the money paid .as the price.stands as an offset against the services of the slave.

It is therefore ordered that the judgment of the District -Court be reyersed. It is further decreed that the plaintiff re.coy.er of the defendant Kendall, §537 50, with five per cent interest from the fst October, 1846, the date of judicial demand, un® paid; the appellee paying fh,e costs of this appeal, and the defendant those .of the .court below. 
      
       Eusris. C. J. absent Rost, J. recused himself on account of relationship ,lo one of the parties.
     