delivered the opinion of the court.
The defendant is appellant from a judgment by which the plaintiff has recovered the price of a slave which he bought of the defendant, on the ground of a redhibitory malady, called “ a chronic disease of the kidneys.”
A new trial was refused to the defendant and he appealed.
The evidence is so completely poised, that if the verdict of the jury had been against the plaintiff we should not have felt authorized to relieve him; as, it appears to us, he made that , ,, , ,, , . , . , . . . . hardly probable, which it was his duty to make certain. The new trial was in our opinion incorrectly refused : but the defendant and appellant has not sought relief from us on that rl ° , score. He has urged, that although there is an allegation, there is no evidence in the record, to show that the plaintiff offered to return or give back the slave, and that the judgment makes no provision for his return; and that such an offer must ... . . . always precede the institution of a suit, or action lor the return of the price, in a sale sought to be annulled and set aside on account of a redhibitory defect in the object sold. Such was the decision of this court in the case of Janin vs. Franklin, 4 La. Reports, 198; which is supported by the case of Castellano vs. Peillon, 2 Martin, N. S., 466, in which case a runaway slave was excepted from the general rule; Exceptis probat re-gulam.
It is therefore ordered adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed ; *284and that ours be for the defendant and appellant, as in case of ^ non-suit, with posts in both courts.