By the Court,

alone, In this case *5there is certainly more of hardship than difficulty. The loss cannot be divided and it seems hard that either party should sustain it entire. But as it must be done by one of the parties only, the hardship will be less if it fall on the vendor. The vendor by restoring the price of the slave will be no poorer than if he had not sold him; for in all human probability, the slave would have died at the time he did, if no sale had been made. The Court, however, is to decide upon the law, not upon the hardship of the case.

The doctrine upon the sale of defective property is plainly laid down in the statute of the territory which has been cited. Where the vendor is apprised of the defect of the thing sold, he is liable to the vendee, not only for the restoration of the price, but such damages as he may have sustained. Civile Code 358, art. 71, but if he be ignorant of the defect he shall restore only the price and costs of sale—Ibid. 72.

In the present case it appears to me the plaintiff paid a sound price; the difference between the proceeds of the remaining part the family, at a private sale, and the price paid for them at the auction, is no greater than what might have been expected. Property generally brings more when the vendor deliberately looks for a purchaser, than when it is brought under the hammer, and I recognize the principle that a sound price implies a warranty of the soundness of the chattel.

*6But it is contended, by the defendant’s counsel, that the principle, with regard to the sales of slaves, is confined in the 80th article, p. 358 of the Civil Code, to the cases of leprosy, madness, epilepsy and the like, and extends not to such ailment or infirmity which is in its nature incurable. The code contemplates such maladies as pursue the subject through life, and though rarely, of themselves, the immediate cause of death, do not yield to the influence of medicine.

The construction which I give to this article is a plain, and I trust, a just one, and in unison with the doctrine laid down in the preceding articles. It is this: If a slave at the time of the sale be a leper, mad, or epilectic, the redhibitory action accrues immediately, and the vendee is not bound to attempt the cure of a disease which is presumed incurable. It is the same with regard to such other infirmities as may he considered as incurable, and render the slave unfit for any service, particularly for the one for which he is intended—such as a confirmed rheumatism, the gravel, a broken arm in the case of a negro intended to be employed in a blacksmith’s shop.

But if the disorder be such as from its nature will yield to medicine in a reasonable time, as a fever or the like, the redhibitory action does not accrue to the vendee on his discovering it, unless the vendor knew the situation of the slave; but if the slave die of that malady, without the fault or neglect of the vendee, the action will *7attach. For the injury to him would be the same as if the malady had been one of those which are incurable, and this will bring the case within the 73d. art. p. 358 of the Civil Code; that if a thing perish by reason of some inherent vice, existing, at the time of sale, the vendor is liable to restore the price, as soon as the loss is ascertained.

It appearing in this case that the negro was unwell before the sale, and that within three days after he was afflicted with a disease of which he shortly afterwards died, it is to be presumed that the malady had inception previous to, and existed at the time of, the sale, and the judgment of the Court is, that the plaintiff do recover the consideration paid.