Matilda Jourdain, for the use of Ann Eliza Baker v. Isaac Boissière, 2 Rob. 289

Morphy, J. This is a redhibitory action in which the petitioner claims four hundred dollars, the price of a negro woman sold to her by the defendant, under a warranty against all redhibitory vices and maladies, except the vice of running away.

It is alleged that, from the moment of the purchase, the slave has been constantly suffering from various diseases, but more particularly from ulcers in her legs and knees, which have rendered her perfectly useless, and that this malady existed previous to the sale ; that for drugs and medical attendance the petitioner has expended $125, and has, finally, been compelled to return her to Boissiere, who refuses to rescind the sale, and refund the purchase money, together with the $ 125 expended on account of the slave. The general issue was pleaded.

There was a judgment below annulling the sale, and allowing the plaintiff $450. The defendant has appealed. Two physicians, one of whom had the girl under treatment for several months while she was in plaintiff’s possession, have declared that she was unsound, having ulcers on her left knee which must have existed for a long time, and which, in their opinion, cannot be radically cured ; that even if the ulcers were healed, they would, from the nature of the disease, break out again, and that she could never have the same use of the sore, leg as of the other.

Two other witnesses have testified that, in consquence of this malady, the girl was unable to work at the plaintiff’s house. On the other hand, a physician has testified that the defendant called upon him to examine the girl’s knee, telling him that he had sold her, and had a difficulty about her ; that he saw that there had been*a sore on her left knee, but that she appeared to use her limb freely ; that she was perfectly well at that time, and was able to work, but that he has never seen her since.

From a certificate of this physician, which was given in evidence, it appears that this examination of the girl’s knee took place eighteen months before the trial below. The broker who sold the girl to the plaintiff, also declares that he has seen her since she was returned to the defendant, that she is perfectly cured, and that there is nothing but a small scar on her knee. He adds that he has not seen her for a longtime This’lestimony does not absolutely conflict with that adduced 6y the plaintiff.

To destroy the effect of the latter, the defendant should have proved by the physician who attended on the girl when she was returned to him, that she .was radically cured, and that her ulcers had not broken out since she was examined by the physician who gave the certificate produced in court eighteen months after its date. This he could easily have done. It was not enough to show that, at a particular and distant time, her knee appeared to be cured to a physician who had not seen the ulcers, and had no opportunity of knowing the nature of her disease or of judging of its curableness.

Moreover, the defendant has not shown that after the pretended cure, he ever offered to return the slave to the plaintiff. Upon the whole, the evidence is not such as to make it our duty to reverse the judgment appealed from. The declaration of the broker, at the time of the sale, that the girl had a wound on her knee, and had hurt herself in scrubbing floors, did not apprize the plaintiff that she had a disease of a character not to be radically cured. Judgment affirmed.