Roberts v. Rodes. III, N. S. 100. SIXTH District. Held, motions for new trials are always addressed to the legal discretion of the court. The only difficulty in the present case was this: PORTER, J., said:-We have already seen that this action is instituted on a contract of exchange, by which a house and lot were given for three slaves. The judgment of the district court is, that the plaintiff recover of the defendant, the sum of six hundred and fifty dollars in money. This is not rescinding a contract of exchange, but a contract of sale; or in other words, a different contract from that which the parties entered into. Redhibition, according to our Code, is the cancelling of the sale on account of some defect in the thing sold, such as may be sufficient to oblige the seller to take it back again, and have the sale annulled. Civil Code, 356, art. 65. Were there no other provision in our law but this, it would necessarily follow that in annulling the contract, the parties should be replaced in their original position; the plaintiff giving back what he originally received, and getting in return what he had given for it. A reference to other works of authority places the subject beyond any doubt. "Redhibitorio es bolver la cosa comprada, el comprador al vendedor, y el bolverse el precio que dio por ella Curia Philip. lib. cap. 13, nos. Verbo Redhibitoria." The price given here was not money, but a house and lot; or, strictly speaking, there was no price, for the contract was not one of sale. Pothier treats of this subject with his usual accuracy, and gives the most satisfactory information on the point now under discussion: "L'acheteur (he says,) est en droit de demander par l'action redhibitoire la résolution et nullité du marché et qu'en consequence les choses soient remises en meme etat que s'il n'etoit pas intervenu.” Pothier, Traité du Contrat de Vente, no 217. In support of this doctrine, he cites the Digest, liv. 22, tit. 1, l. 23 and 60. There is some difficulty in applying these principles to the case, as only one of the slaves is afflicted with redhibitory defects, and the property given in exchange was a house and lot, which most probably is not susceptible of such division as would enable a portion precisely equal to the value of the property now sued for to be returned. By law, the vendee, who acquires several slaves by one contract, is not permitted to annul the whole contract for a defect in a part of the objects purchased. 6 Martin, 689. This rule, however, of necessity, [Roberts v. Rodes.] yields to cases where, from the nature of the agreement, a partial rescission cannot take place, and there is the same necessity that'the vendee should exercise it for the whole. For there is no other way that the parties can be replaced in their original position, or that the thing given as a consideration can be restored The pleadings and evidence do not enable us to give final judgment according to the view we entertain of the legal rights of the parties. We think the cause should be remanded for a new trial. It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, that the cause be remanded for a new trial, and that the appellee pay the costs of appeal. Bullard and Holkam, for the plaintiff. Martin v. Curtis et al. III, N. S. 105. The acknowledgments of the vendor in the deed of sale, are evidence against a subsequent vendee. SIXTH District. MARTIN, J., delivered the opinion of the court. The plaintiff claims certain slaves in the possession of the defendants. They pleaded the general issue, prescription and title under Benson, whom they called in warranty. Benson alleged that the plaintiff never had possession of the slaves under the sale from Wallace, by virtue of which he claims themthat he released all his right to Wallace, who sold the slaves to him, and that he and his vendee, the defendants, have possessed them upwards of five years-that Wallace's sale to the plaintiff was a simulated one. The plaintiff had a verdict and judgment, and the defendants appealed. The documents produced are 1. Wallace's sale of the slave sued for, to the plaintiff, March 21, 1817. 2. Benson's to the defendants, November 30, 1818. 3. Wallace's sale to Benson, July 3, 1818. [Martin v. Curtis et al.] The sale of Wallace to the plaintiff, is a vente à remere, a sale with a clause reserving to the vendee the power of redeeming. That of Wallace to Benson recites that of Wallace to the plaintiff, and Benson promises to procure the plaintiff's release and recon veyance. Our attention is first directed to a bill of exceptions taken by the defendants' counsel to the refusal of the district judge to charge the jury, that "in law, the acknowledgment in the conveyance from Wallace to the plaintiff, that the price of the negroes was paid down, was no proof against Benson that such a payment was made." We think the district judge was correct. Benson was Wallace's vendee, and must be bound by the acts of his vendor, in regard to the thing sold. The first plea of the defendant, the general issue, is unsupported. The plaintiff proves his right by the production of the deed of sale of Wallace, under which the defendants claim. This deed is a notarial one, and the identity of the slaves is admitted in the statement of facts. The plea of prescription, i. e., that the defendants possessed five years, is unsupported; their title bears date Nov. 30, 1818, and the citation in the present suit appears to have been served on the 6th of November, 1823. The deed of Benson is posterior to that of the plaintiff, and recites the conveyance of his vendor (of the negroes sold,) to the plaintiff, and he accepts the sale on the covenant of his vendor to produce a conveyance or release from the plaintiff. This does not appear to have ever been obtained. Benson pleads, 1. That the plaintiff never had possession of the slaves sold. The plaintiff's deed expressly sets forth that the slaves were delivered to him. The statute provides that the tradition or delivery of slaves takes place by the mere consent of the parties, when the sale mentions that the things were delivered to the buyer. Civil Code, 350, art. 28. It therefore follows, that the plaintiff had that tradition or delivery, which transferred the vendor's right. Benson, who, when he purchased the slaves from Wallace, was informed by a clause in his deed, that the negroes he was purchasing were already sold to the plaintiff, and was willing to trust Wallace on his covenant that he would procure the plaintiff's reconveyance or release, cannot complain that the plaintiff, by permitting Wallace to possess and have the slaves as his own, enabled him to defraud and impose upon him the second vendee: for the declaration of Wallace, contained in the sale to Benson, that the title to the slaves was in the plaintiff, precludes the idea of his exercising any fraud or imposition. The statement of facts shows that the plaintiff permitted Wallace to keep the negroes after the sale. The evidence of fraud which this complaisance presents, if it could be invoked by Benson, who bought with his eyes open, and to whom every thing was disclosed, must [Martin v. Curtis et al.] vanish, when the perusal of Wallace's deed to the plaintiff shows that, although the former was secured by an actual bona fide sale, yet the intention of vendor and vendee was that the slaves should be reconveyed, as soon as the former availed himself of the right of redemption, reserved to him by a clause in the deed. Admitting that to a purchaser without notice, the circumstance, that after the sale was completed, by a legal tradition, the vendor was permitted to retain the slaves, and remain the ostensible owner, might give some claim to a party, deceived thereby-yet Benson, who had legal notice by the notarial sale to the plaintiff, and to whose immediate predecessor notice and knowledge were given by Wallace, cannot possibly complain. Benson's deed is not such a title as may enable him to prescribe under it, for he knew his vendor had no title. There is no evidence of the alleged simulation. The case of Price v. Curtis et al., 6 Martin, 420, and Copelly v. Duverges, 11 Ibid. 641, have been insisted on. But in the first, the deed of sale did not state any delivery-and the latter was that of a sale anterior to the Code-the conveyance was of land, not of slaves. It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be affirmed, with costs. Thomas, for the plaintiff, Bullard, for the defendants. Hunter v. Smith. III, N. S. 109. SIXTH District. Answers to interrogatories cannot be divided. Winkle v. Tyler. III, N. S. 111. SIXTH District. A vendee cannot resist payment on the ground that there are other persons who have titles to the land sold him, there being no suit brought, no certainty that these persons will ever disturb him, nor any means of trying whether their titles are better than his. Bird v. Bowie. III, N. S. 112. If the answers to interrogatories are evasive, the cause will be remanded. SEVENTH District. : PORTER, J., said:-The defendant propounded two questions to the plaintiff Whether he had not received the negro mentioned in the first interrogatory, at 1200 dollars, or if not, at what sum had he agreed to take him? The answer furnished a reply to only one of these questions, namely that he had not received him at 1200 dollars. In this it was clearly defective, but the plaintiff contends this defect has been cured by an answer given to another of the interrogatories, by which it is stated that the negro was not delivered in payment of the principal sum due, but the interest which had accrued on it. And he insists the amount was immaterial, because it could not be used in this action as a defence, or if material, that the answer is sufficiently explicit, because it states it was the amount of the interest due at the time the slave was received. In this reasoning, which is sufficiently ingenious, this court cannot concur. It seems to us to take for granted in favor of the party answering, the very thing which it was the object of the interrogatory to disprove. From the pleadings, and the drift of the plaintiff's answers to the questions proposed to him, it appears that one of the points principally disputed between the parties, was, whether the negro had been given in payment of the principal sum due by the |