Same Case — On a Re-heaeing.
Buchanan, J.The institution of two separate petitory actions, at different periods of time, one for the slave woman, Peggy, and one for her child, — the mother and child having previously passed, by several distinct conveyances, for one price in each conveyance, without a separate estimation of the relative value of each, — has produced a complication in the facts, which gives some color to the complaints made by the warrantor, Mrs. Bourgeois, in her petition for re-hearing.
We have, therefore, accorded the re-hearing, and have carefully reconsidered the ease in all its bearings. It results from our researches, that Mrs. Bourgeois having purchased the woman, Peggy, and her infant child from White, for eight hundred dollars, and having, some years thereafter, resold the same woman and child to Lacapére, for one thousand dollars, was sued in warranty for the woman alone, and cited her vendor, White, in warranty in the same suit. Mrs. Bourgeois was condemned, as warrantor, to pay Lacapére seven hundred dollars, but neglected to have judgment entered up, upon her call in warranty.
Perhaps she was unable to do so, White being only in court, in that suit, as an absentee, by a curator ad hoc appointed by the court to represent him. Whatever may have been the reason, the fact is that there was no judgment upon that call in warranty. Subsequently, Mrs. Bourgeois was cited a second time in warranty of Lacapére’s title ; but this time, to the child of Peggy alone, which had not been sued for in the first suit. She cited her vendor, White, to warrant her also in this suit. White was served personally with citation and joined issue. Judgment was rendered against Mrs. Bourgeois in this suit, for two *278hundred and fifty dollars, the , estimated relative value of the child at the time of the sale from Mrs. Bourgeois to Lacapere ,1 and there was judgment in favor of White upon the call in warranty of Mrs. Bourgeois, the court being’ of opinion, under the evidence, that the child possessed no appreciable value at the time of the conveyance by White to Mrs. Bourgeois. This judgment was affirmed by our decree already pronounced herein. And wo are unable to perceive that we have wronged Mrs. Bourgeois by that decree.
In this suit, nothing was in controversy but the child, although it is true that child constituted one of several objects which had passed by the same conveyance. But it appears from the evidence, that the child added nothing to the value of the other article sold, the mother, at that time. It was necessarily included in the conveyance, however, because the humane provision of our law is imperative, that the slave mother cannot be sold separately from her offspring of tender age.
But it seems from the’statements of the petition for re-hearing, that Mrs. Bourgeois settled her claim against White in the first suit out of court, and received from him for the woman Peggy the same amount, seven hundred dollars, which she had been condemned to pay to Lacapere. Nothing of this appears in the record; but we take the statement of counsel to be correct. If so, it is possible that Mrs. Bourgeois will have a remedy for further indemnity against White. For it is now decided, contradictorily with White, that the whole of the price paid by Bourgeois to White ($800) was for the woman Peggy alone. And it may be argued, that in the first suit, Mrs. Bourgeois could not have recovered more than $700 from White, because she had only been condemned to pay $700. But that now, having been condemned to pay an' additional sum of more than $100, she has an additional claim for the balance of the price by her paid. We throw out these observations without expressing a decided opinion. But we are clear that we cannot give Mrs. Bourgeois relief at this time, and with the proofs before us.
Upon the question of costs, we perceive no more reason to change our previous judgment. Costs follow the judgment and are to be paid by the party cast. C. P. 549 ; Bolton v. Harrod, 10 M. R., 115.
Let our former judgment remain undisturbed.
Yooimnss, J., absent.