This is a redhibitory action, instituted by the plaintiff to rescind the sale of a slave named Coleman, fully warranted in the act of sale, and to recover back the price paid for him.
The answer is a general denial.
The verdict of the jury who tried the case, and the judgment of the Court, were in favor of the plaintiff; and the defendant has appealed.
No tender of the slave to the seller was ever made ; and this is urged by the defendant as fatal to the plaintiff’s right to prosecute his present -action.
The sale was made on the 19th June, 1860, and the slave died on the 8th October next following, of the same disease with which he was affected at the time of the sale.
*120Article 2510 of the Civil Code provides that, if the thing affected with the vices has perished through the badness of its quality, the seller must sustain the loss; and Article 2512 C. C. provides “that the redhibitory action must be instituted within a year, at farthest, commencing from the date of the sale.” The petition was filed on the 3d December, 1860, long after the death of the slave, so that it was impossible to tender him to the seller. The case of Rider v. Wright & Marshall was different from this one, and came within the provisions of Article 2511, which reads thus : “If it (the thing) has perished by a fortuitous event, before the purchaser has instituted his redhibitory action, the loss must be borne by him.”
In the case of Lewis v. Morgan, 14 A. 401, it is not shown that the slave was dead when suit was instituted.
We think, under the circumstances of this case, the want of tender cannot be invoked against the plaintiff to defeat his action, and this ÍS' the only ground relied on.
It is therefore ordered, adjudged and decreed, that the judgment of the-lower Court be affirmed, with costs of appeal to be paid by the appellant.