#### JAMES SLOAN *vs.*WILLIAM WILLIFORD.

A notice to take a deposition on Sunday is not good, and a deposition taken on suck notice must l)e rejected-

June 1843

In an action for a breach on a warranty that a slave is of “ sound mind,” it is not necessary for the plaintiff to show that the slave was *an*idiot or a luna, tic at the time of the warranty. It is sufficient to shew that he had been a lunatic, tlieugh in a lucid interval at the time of the warranty, and his insanity afterwards returned; or to shew, that ho was of so weak an understanding and possessed so dim a reason, as to be unable to comprehend the ordinary labors of a slave and perform them with the expertness that is common to his class.

Appeal from the Superior Court of Law of Iredell county, at Spring Term, 1843, his Honor Judge Dick presiding.

The action was covenant on the following bill of sale under seal for a negro slave : to wit, “ Received of James Sloan the sum of nine hundred dollars in full satisfaction of a negro man by the name of George, aged twenty-one or two years, which negro I warrant to be of sound mind and body, and I warrant the right and title of the said named negro from the claim of myself and all other persons. Given under my hand and seal, this 11th of May, 1836 which bill of sale was signed and sealed by the defendant and duly attested, proved and registered. The defendant pleaded covenants performed and no breach.

The plaintiffs alleged, and offered evidence to prove, that the negro slave was unsound both in body and mind. The plaintiff offered the evidence of one James Huie, taken in New Orleans, which was objected to by the defendant, because it was taken on Sunday. The court overruled the objection and permitted the deposition to be read to the jury. The defendant’s counsel requested the court to charge the *308jury, that, unless the evidence satisfied them, that the slave was an idiot or lunatic at the time the defendant entered into the covenant, the plaintiff- was not entitled to recover on this part of the covenant. The court declined to give the jury the instruction prayed for, but told them, that, if the slave’s grade of intellect was below the ordinary grade of intellect of slaves of his age and appearance, the plaintiff would be entitled to recover. The court further intruded the jury, that, if they believed the slave was unsound, either in body or mind, at the time the bill of sale was executed, the plaintiff was entitled to recover. The jury found a verdict for the plaintiff. The defendant moved for anew trial ; first, because Huie’s deposition was permitted to be read; and secondly, because the court refused to give the instructions asked for as before stated. The motion was refused, and judgment having been rendered according to the verdict, the defendant appealed.

*Caldwell, Alexander*and *Hoke*for the plaintiff.

*Badger*for the defendant.

Ruffin, C. J.

The court is of opinion that the deposition should have been rejected. It is not material whether or not Sunday be *dies nonjuridicus*in Louisiana. By our law it is deemed requisite to the purposes of truth and justice, that one, against whom a deposition is to be read, should be present when it is taken, and be allowed to cross-examine. For that purpose it prescribes a reasonable notice of the time and place of taking the deposition, so that the party may be actually present; and no practice should be countenanced, which tends to impair that right. On this principal alone the objection to the deposition was sufficient. For, if it be not against the law of the land, it is well known that many of the best men scruple in point of conscience, whether it be not against the moral law, to devote Sundays unnecessa.rily to secular concerns. They ought neither to be compelled to violate their sense of duty, nor to abandon their *309civil rights. The effect of sucha proceeding might often, and, perhaps, its object as often, be, to keep the party from attending from tenderness of conscience. To say nothing, then, of an actual moral obligation of a sabbath, or of the legal injunction on all persons to apply themselves on Sunday to the duties of religion, or of the indecency of violating the settled religious habits of a vast majority of our citizens, it is sufficient to say, that it would be indulging a wanton, or a worse spirit, if a party, with six other days in the week appropriate to such a purpose, were encouraged to select for it the seventh day, which most men among us dedicate to rest or devotion, and which many good men think themselves bound not to employ otherwise.

It may save time and expense to the parties, if, while sending the cause to another trial for the reason already stated, the opinion of the court should be expressed upon the construction of the warranty. We think the court properly refused the instructions asked on the part of the defendant, and that a purchaser may recover on a covenant, that a slave is of sound mind, although he be not an idiot, nor, at the time, a lunatic. If, for instance, one subject to lunacy has a lucid interval at the time of sale, but after-wards become insane, the covenant would be broken. If a free person, he might, at the moment, have capacity to make a contract; yet, as the subject of a contract, a slave, needed not only for immediate mental capacity, but for use as ala-borer through a long course of years, he could not,- with that taint in the intellect, be said to have a sound mind ; and if, by a subsequent paroxysm of the malady, he should lose his reason and his value, the seller ought justly to answer in damages. So too, if the slave, though not actually an idiot, be so weak in understanding and possess so dim a reason, as to be unable to comprehend the ordinary labors of a slave, and perform them with the expertness that is common with that uneducated class of persons, his mind must be deemed unsound within the meaning of the warrauty.-— If, for want of competent sense, he cannot discharge the or-*310duties of our slave population, he is of no value to the purchaser, who ought, therefore, to have redress upon his warranty.

Pee Curiam. Judgment reversed and new trial awarded.