
    CARTER vs. COOPER.
    Easter» Dis.
    
      May, 1833.
    APPEAL PROM THE PARISH COURT POR THE PARISH AND CITY OP REW-OREEAITS.
    The Supreme Court will remand a cause less readily on a question of fact, if a new trial was not moved for in the court helow.
    This was an action, brought by the vendee of a slave, warranted free from the vices and maladies prescribed by law, to recover the purchase money, on the ground that the slave was at the time of sale, afflicted with chronic diarrhoea.
    The plaintiff had judgment, and the defendant appealed.
   Maktijv, J.

delivered the opinion of the court. •

The plaintiff claims the return of the price of a slave sold to him by the defendant, on account of her being at the time of the sale, in the knowledge of the latter, afflicted with a chronic diarrhoea, of which she afterwards died, and of her being so much addicted to drunkenness, that the plaintiff would not have purchased her if he had known it.

The general issue was pleaded; there was a verdict and judgment for the plaintiff, and the defendant appealed, without having made any attempt to obtain a new trial.

Tho gupremo, acSuJimSÍ an^wuiai jvasnotmOTedfor in the court be-

Carleton, Lockett and Kelly, for appellant.

Preston, McCaleb and Gray, for appellee.

His counsel has contended in tbis court, that there is no evidence on the record, that the slave was afflicted with any redhibitory malady or vice, before or at the time of the sale; that this evidence the plaintiff ought to have administered, and not having done so, he cannot recover. Civil Code, 2505.

The testimony shows the slave died shortly after the sale, of a diarrhoea; there is no evidence of her laboring under that malady at or before the sale, except the fact of her having been before that period, sick of a bowel complaint during four or five days. The period at which the disease, of which she died, manifested itself, is not correctly established.

Two witnesses swear, it was two or three days after the sale and a number on the fourth day; a number of witnesses were heard; no question of law arose on the trial. The circumstance of the defendant having refrained from asking for a new trial below, and the parish judge having expressed his satisfaction of the correctness of the verdict, would render it more difficult to come to the conclusion, that the defendant ought to have the case sent back for a new trial, which is the utmost relief he could have at our hands. But we are unable to say, that the evidence does not preponderate in favor of the plaintiff.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed with costs.  