NELSON vs. LILLARD. WESTERN DIST. Which was paid by his note for five thousand five hundred October, 1840. dollars, payable twelve months after date, including therein, the interest of one year, at ten per cent., which sum was, on the same day, secured by mortgage. That all said slaves. were warranted to be sound in mind and body, with some exceptions in regard to Solomon and Willis. He further states that all said slaves were unsound at the time of the sale; that Willis was an idiot, and since the sale the vendors have taken him back; that Cynthia was, previous to the sale, unsound, had been injured in one of her hips, and died in the month of July or August, after the sale; that Moses was subject to fits, of which he died on the first of June; that Solomon was affected by a pulmonary disease, or consumption, and that Frank is diseased, unable to work, and entirely useless. He prays that the sale be annulled and rescinded, that the note by him given be also cancelled, that if said note, be the property of third persons, the defendant may be condemned to indemnify him, that the mortgage by him given be also cancelled, and for one thousand dollars damages. He propounded interrogatories to Lillard, one of the defendants, who, in his answer to the first shows, that although the five slaves were sold for the total amount of five thousand dollars, the separate price of each was, one thousand two hundred dollars for Frank, one thousand dollars for Moses, one thousand dollars for Solomon, one thousand dollars for Cynthia and eight hundred dollars for Willis. Defendants pleaded the general issue, acknowledged having taken back the slave Willis for eight hundred dollars, for which they gave a note to the plaintiff for eight hundred and eighty dollars, explain the reasons why plaintiff gave a note of five thousand five hundred dollars, and pray that the suit be dismissed. There was a verdict and judgment in favor of the plaintiff, annulling the sale as to two of the slaves, and the defendant having obtained a new trial, the second verdict of the jury was again for the plaintiff, rescinding the sale in toto, and allowing the defendant four hundred and fifty dollars for the hire of the slaves, and the District Court having rendered a judgment accordingly, defendant made a motion for a new trial, which was overruled, from WESTERN DIST. which judgment he took the present appeal. The record shows, that about two weeks after the sale, the defendant took back the slave Willis, for which he gave plaintiff a note of eight hundred and eighty dollars, including therein the interest of one year, and that the note of five thousand five hundred dollars is not in defendant's possession, but has been transferred to a third person. The sale of the five slaves, made in a lump for five thousand dollars, states that the vendor warrants them sound in body, except the boy Solomon, and sound in mind, except the boy Willis, and although the plaintiff attempted to prove, by the oath of one of the defendants, that Solomon had been warranted as sound in body in every respect, other than having a club foot; his answer to the interrogatories show, that the warranty was limited, as stated in the sale. Several physicians were examined, and from the mass of testimony found in the record, it is proven that the slave Solomon had the seeds of consumption, perhaps eight months, previous to the physicians having first seen him, which was in the latter part of the summer of 1837; that said physician saw him alarmingly ill, and that the disease made its appear. ance, a week or ten days after delivery. That Moses died on the first of June, of epilepsy, or of a stroke of the sun; and that he had had an attack in the middle of April, that the symptoms might have been epilepsy, or a stroke of the sun, and that the negro was found once speechless and foaming at the mouth, lying on the ground, &c., &c. That Cynthia died in September, complained of her hip, and was lame from a week or ten days after Nelson bought her until her death, &c., &c.; and that Frank is alive, able to work moderately, but has been sick four months in the summer, &c., &c. It is also shown that plaintiff was in the habit of treating his slaves kindly, that they were generally well clothed and well fed, and that the defendant, Lillard, admitted at one time, that "the slaves sold were an old, no account set of negroes, and if he had known what kind they were, they never should have come out from Virginia." October, 1840. NELSON vs. LILLARD. WESTERN Dist. NELSON vs. LILLARD. warranty of be considered a sol From the general evidence of the case, it seems to us that October, 1840. the jury were authorized to come to the conclusion that the slaves, Moses and Cynthia, were affected with redhibitory defects at the time of the sale; and had they limited their verWhere a slave dict to rescinding the sale with regard to the said two slaves, is expressly ex- we should have felt no hesitation in maintaining their vercepted in the act of sale, from the dict, which, although some parts of the evidence appears ing sound in bo- contradictory, cannot be said, as to the said slaves, to be dy, it will be clearly erroneous. But the jury have rescinded the sale emn declaration also, with regard to the slaves Solomon and Frank, and sound, and the in this, we think, they erred. The boy Solomon was not warranted as sound in body; this warranty was, on the contrary, specially excluded from the sale, and we consider that as a solemn declaration that said slave was unsound, which, in the sense of the expression, indicates that he was sickly, and subject to diseases then unknown: Louisiana Code, art. 2498; 1 Martin, N. S., 1. This was enough to induce the plaintiff not to buy him. With regard to the that he is un purchaser takes him absolutely at his risk. Where the evi show that a slave was afflicted with dence does not negro Frank, we think the plaintiff has not made out his case, as he has furnished no evidence of this slave being redhibitory afflicted with a redhibitory disease at the time of the sale, time of sale, it although he proved that he was sick some time after the sale; is insufficient to and the evidence adduced does not, in our opinion, justify disease, at the rescind the sale, although it is the rescission of the sale as to him. The verdict of the jury was sick shortly must, therefore, be set aside, as to the slaves Solomon and proved that he after the sale. Frank. We do not consider the defendant entitled to any damages for the loss of Moses and Cynthia, as those slaves were sick from the time they were delivered, and died a short time after the sale; and our judgment must be in favor of the plaintiff, only for the reimbursement of the prices of Moses and Cynthia, with one year's interest on the amount, al the rate of ten per cent. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; that the verdict of the jury be set aside, as to the rescission of the slaves Solomon and Frank, and as to the damages allowed to the defendant; and that the plaintiff do BRUMGARD recover of the defendants, in solido, the sum of two thousand WESTERN DIST. dollars, being the prices of the slaves Moses and Frank, with October, 1840. one year's interest thereon, at the rate of ten per cent., and legal interest thereon from judicial demand until paid; and that the sale be maintained as to the other slaves, except Willis, who was taken back by the vendors; the costs of the court below to be paid by the defendants, and those in this court to be paid by the appellee. V8. ANDERSON. BRUMGARD vs. ANDERSON. APPEAL FROM THE COURT OF THE NINTH DISTRICT, FOR THE PARISH OF MADI- The defendant disproved the facts stated in the affidavit for the attachment, so far as to throw the burden of proof of their verity on the plaintiff; and this not being shownby disinterested witnesses, the attachment was dissolved. Where witnesses declare on their voir dire, that they are and believe themselves interested in the event of the suit, they are incompetent to testify. This is an action against the defendant, as one of several obligors in a promissory note of five thousand four hundred and twenty-eight dollars and sixty-five cents, alleged to be liable in solido. The suit commenced by attachment. The note was executed in Vicksburg, and the attachment sued out in the parish of Madison, in this state. It issued on the allegation that the defendant was about to leave the state permanently and forever, without leaving in it sufficient property to pay the plaintiff's demand. The defendant, before answering to the merits, filed a motion to dissolve and set aside the attachment on several grounds. 1. That the allegations and oath were false, as he had no intention of leaving the state. 2. The seizure was illegal and irregular, because no inventory of the articles and property seized are annexed to the sheriff's return; and that the order granting the attachment is not in conformity to law. WESTERN DIST. 3. That writs of attachment and arrest have both been October, 1840. taken out by the plaintiff, without showing he was entitled to both remedies. BRUMGARD vs. ANDERSON. 4. That the seizure under the attachment is excessive, by taking more property than was required or necessary, and at a time when defendant was gathering his crop to his great damage. There was a mass of testimony taken to disprove the allegations and affidavit on which the attachment was issued. The judge was of opinion that they were disproved, and dissolved the attachment. The plaintiff appealed. Selby, for plaintiff and appellant. Bemiss, for the defendant. Morphy, J., delivered the opinion of the court. son. The plaintiff is appellant from a judgment dissolving and setting aside an attachment, sued out against the property of defendant, independent of an order of arrest against his perThis case has been submitted to the court without argument. Of the several grounds taken by the defendant, the court below has rested the decision complained of mainly on the first, which presented a question of fact; to wit, "that the allegations, on which the order for said attachment was obtained, are false; that the defendant, at the time of said attachment or before, or since, had no intention of leaving the state permanently or forever; that the plaintiff had no just ground upon which to base his affidavit and prayer for said attachment; but that this proceeding was resorted to with the intention of vexing and harassing this defendant." The record presents a mass of testimony in relation to divers circumstances, tending to negative the idea that the defendant had any intention of leaving the state. After an attentive examination of the whole evidence before us, we concur in opinion with the judge below, that the facts set forth in the plaintiff's affidavit have been disproved, or at least that there has been on the part of defendant, a sufficient showing |