318.

Stiff v. Nugent and another.

That case, and the one which now engages our attention, are very similar. In both cases, the deception in packing was discovered in the foreign market. In the case of Brown v. Duplantier, it was found that the cotton, on the exterior of the bales, was worth two pence per pound more than that it covered. The court said, that the only measure of damages is the difference between the price given, and that which would have been given, had there been no deception in the bales. But the principal point upon which that case turned was, whether a purchaser, who had parted with the thing, could maintain the action, quanti minoris, which was solved affirmatively. In the present case, both parties acquiesced in that part of the Judge's charge in which he told the jury, that if the goods did not correspond with the contract, by reason of some defect, or vice not known to the vendee at the time of the delivery and acceptance of them, he is entitled, where there is no fraud, to recover the difference between the price paid and the value of the goods, as affected with their defects and vices, existing at the time and place of delivery. The court added, that the expenses necessarily incurred at the foreign port, to which the vendee ships the goods, in consequence of the difference in quality, may be assessed by the jury, on account of the warranty which our law implies in every sale. This part of the charge was excepted to by the defendants' counsel; but we held it to be correct; nor do we now see any good reason for thinking otherwise. The expense attending a more thorough examination of the cotton, in consequence of the discovery that it had been falsely packed, with a view to ascertain the proportion of trash packed among good cotton, is a direct loss occasioned to the purchaser by the false packing, and which, we think him entitled to recover back. Nearly all the cotton sold in this market is destined for exportation, either coastwise, or to foreign countries. It is sold here according to samples drawn from the outside of the bales, and the discovery of frauds in baling the articles, is generally made, when the cotton is, or is about to be, sold for consumption. It is difficult, therefore, to apply literally the rule contended for by the counsel for the appellants; but after all, there cannot be a great difference between the relative value of

Fox v. Walsh.

gin-trash, and merchantable cotton, here and in Liverpool. The whole was left to the jury.

Re-hearing refused.

BERNARD Fox v. JoHN W. WALSH.

To recover in a redhibitory action, the purchaser must prove that the alleged vice or malady existed before the sale to him, unless it makes its appearance within the three days immediately following the sale; in which case, it will be presumed to have existed before. C. C. 2508.

APPEAL from the District Court of the First District, Buchanan, J.

Mitchell, for the appellant.
Benjamin, for the defendant.

MORPHY, J. This is a redhibitory action, in which the plaintiff seeks to recover the price of a slave named Permili, on the allegation, that prior to, and at the time of the sale to him, she was affected with a confirmed and incurable consumption, of which she died about ten months after the sale. There was a judgment below in favor of the defendant, from which the plaintiff took this appeal.

The buyer, who institutes a redhibitory action, must prove, that the alleged vice or malady existed before the sale to him, unless it makes its appearance within the three days immediately following the sale, in which case it is presumed to have existed before. Civil Code, art. 2508.

The sale to the plaintiff took place on the 17th of April, 1839. The witnesses of both plaintiff and defendant agree in representing the slave Permili, or Amelia, as having been at that time a stout, fat, and healthy looking girl; and persons who knew her, while she was owned by the defendant, declare, that she was always apparently in perfect health, and was never sick to their knowledge. Dr. Stone, who was called by the plaintiff to see the girl, towards the end of 1839, or in the beginning of 1840, found

Fox v. Walsh.

her then suffering from a violent cough, pains in her breast, fever, &c. He understood from Mrs. Fox, that the slave had been afflicted with a violent cough for two or three weeks previous, and that she had always discharged her duties as a servant, up to the period when she was supposed to have taken cold. He thought, that medical aid should have been procured at an earlier period, but the plaintiff stated, as a reason for not having sooner called in a physician, that they thought it a mere cold. He attended on her afterwards at the defendant's house, two or three weeks before her death. From what he saw, Dr. Stone declared, that he had no doubt that the disease was constitutional; that, from the result of the disease, he believed, that tubercles existed previously in the lungs, and that from a violent cold, inflamation followed, and the tubercles softened down and produced abscesses, which resulted in death; that it is often the case that tubercles remain dormant giving no evidence of the disease; that inflamation, from any cause, will develope them suddenly, and that they will terminate in consumption; but that he could not say positively, from what he saw, that tubercles existed in the slave in question, in April, 1839; he added that a person may live with tubercles in their lungs, arrive at a mature age, and then die of another disease than consumption, &c.

Dr. Davézac visited the girl shortly after the sale. She had a cough which, yielding to treatment, induced him to discontinue his visits. He cannot tell whether the disease of which Permili died, was constitutional or not, as he did not examine her, having at the time no reason to suspect, that she had any thing more than a cough; that tubercles properly so called, cannot exist in the lungs, unless hereditary, but that death may be occasioned from consumption arising from cold or accidental causes, without tubercles in the lungs; that physicians may, by the nature of the expectoration, discover frequently whether tubercles exist in the lungs without autopsy, but these indications are deceptive, and may lead to the belief, that tubercles exist, when there are none,

&c.

This testimony leaves it doubtful whether the malady of which the slave died, existed previous to the sale. It broke out long after its date, and after the girl had had a bad cold for two or three

Duggan v. De Lizardi and others.

weeks. The physician who was then called, professes himself unable to say whether the tubercles, supposed to be the cause of the disease, existed in April, 1839; and the other gentleman who was examined, informs us, that the indications by which physicians believe, that they can ascertain the existence of tubercles without autopsy, are deceptive, and very apt to mislead. These doubts might have been removed by a post mortem examination, but none took place. In the absence of any positive proof of the pre-existence of the disease, and with the evidence the inferior Judge had before him of the apparently sound, and healthy condition of the girl at the time of the sale, we cannot say, that he erred in the conclusion at which he arrived.

Judgment affirmed.

JOHN DUGGAN v. FRANCISCO DE PAULO DE LIZARDI and others.

One who appeals must bring before the Supreme Court all the parties, contradictorily with whom the judgment complained of was rendered, and who are interested in its remaining undisturbed.

There is a difference between the obligations of co-heirs, and of joint obligors by contract. The law apportions among the heirs, all the charges of the inheritance, and each heir may, perhaps, be sued separately, for his virile share. C. P. 120. C. C. 1370, et seq.; aliter as to co-obligors by joint contract, all of whom must be sued together. C. C. 2080 et seq. In the one case, it is a condition of his inheritance that each heir shall pay his share of the debt; but, in the other, no one of the obligors can release himself at will.

In actions on joint obligations, all the original parties must be sued together, even those who may have performed their part; no judgment can be pronounced, unless it be shown that all joined in the obligation; any judgment must be against each defendant separately for his portion, but, in solido, for the costs. (C. C. 2080 et seq. ;) and all the parties below must be made parties to the appeal, though a part only have appealed, or the appeal must be dismissed. Those who have not appealed must be cited as appellees.

APPEAL from the Commercial Court of New Orleans, Watts, J. The petitioner alleges, that the defendants, who had formed a particular partnership under the style of the New Orleans Tobacco Warehouse Company, are indebted to him in the sum of

Duggan v. De Lizardi and others.

$16,692 50, for services rendered by him, under a contract with them, as a superintendant of their establishment, at an annual salary of $5000, commencing from 10th April, 1837. Judgment was prayed for, against the defendants, in proportion to their interest in the establishment, as set forth in the petition.

Judgments by default were confirmed against some of the defendants; others filed general denials; and some specially denied, that they ever belonged to the association. There was a judgment in favor of the plaintiff for $10,138 89, and against each of the defendants for their proportions of that sum, calculated according to their respective interests in the partnership, and against the whole, in solido, for the costs. From this judgment five of the defendants alone appealed. The others were not cited as appellees.

Benjamin, for the plaintiff, moved to dismiss the appeal, on the ground that the action was on a joint obligation, and all the defendants were not made parties; citing Drew v. Atchison and others, decided at Alexandria, at the October term, 1842.

Grima, Soulé, L Peirce, and Janin, for the appellants. BULLARD, J. The plaintiff and appellee moves to dismiss this appeal, on the ground that the action is against joint obligors, and that all the defendants in the court below, are not made parties to the appeal. His counsel relies upon the case of Drew v. Atchison and others, 3 Robinson, 140, decided at the last term at Alexandria, in which we held, that, in actions upon joint obligations, all the parties to the judgment below must be before us on the appeal, otherwise it would be dismissed.

It is urged by the counsel for the appellants, (four* out of eleven of the original defendants,) that the above decision is not in harmony with several previous ones rendered by this court, and particularly that of Burke v. Erwin's Heirs, 6 La. 320, and Farrar v. Newport et al., 17 La. 346.

Our desire to put the question at rest, and our respect for the opinions of those members of the profession who doubt the cor rectness of the last decision, have induced us to consider the question as still open, and to review attentively the several decisions heretofore rendered.