NOIRETTE, f. w. c. vs. DIGGS'S HEIRS, 9 La. 172

Mathews, J., delivered the opinion of the court. This is a redhibitory action in which the plaintiff claims restitution of the price of a female slave, sold to her by Christopher W. Diggs in his lifetime, who is represented by the defendants as his heirs ; prescription is pleaded by them to the suit and a general denial of all the allegations in the petition except their heirship. Judgment was rendered for the plaintiff in the court belbw, from which the defendants appealed.

The petition alleges the absence of the vendor from the state as an interruption of the prescription relied on by the defendants, and also an assumpsit on his part to refund the price of the slave on being informed that she had died shortly after the sale, of a hereditary and incurable disease. The record contains no evidence of the absence of the vendor, but there is proof of his having assumed to return the price, as declared in the petition. On this evidence, the court below seems to have based its judgment, and in our opinion acted correctly.

There is a prayer in the answer to the appeal for ten per cent, damages; but it is believed that this is a case in which damages ought not to be decreed, because in its origin it was one of litigation and uncertainty. It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates be affirmed, with costs.