Fazende v. Hagan

Martin, J. The defendant is appellant from a judgment in a redhibitory action on the sale of a slave, on the ground of his having run away within twenty days after the purchase. The petition alleges that he was in the habit of running away before the defendant sold him. There is no evidence of this habit. The slave was ten years old only. He was found in the yard of the defendant, who is a negro trader. The plaintiff claimed the return of the price he had paid, but, on the defendant’s urging that the slave had been purchased, he took him back. Afterwards the slave absented himself a second time, and was drowned. Judgment had been taken by default, and was confirmed in the absence of the defendant. . It appears to us that justice requires that this case should be remanded for further investigation. The petition states the habit of running away before the sale. Of this there is not a tittle of evidence, and the plaintiff was not bound to prove the habit, although it was not shown that the slave had been less than eight months in the State. B. & C.’s Dig. 792. 13 La. 51. The habit of running away in a boy of ten years of age, is supposed to be extremely rare. ' The boy’s absenting himself from his new master, and going to his former, is perhaps not conclusive evidence of an intention to run away, when we are not informed of the duration of that absence, particularly as one of the witnesses does not speak of the length of that absence, and the other generally states it have been for a few days. There is no other evidence of the tender of the slave to the defendant, than may be implied from the declaration of the plaintiff that the defendant must take back the slave, which is said to have been waived, by the plaintiff carrying him home. It is, therefore, ordered, that the judgment be reversed, and the [308] case remanded for a new trial, the plaintiff and appellee paying the costs of the appeal.