By the Court.
Benning J.delivering the opinion.
The declaration contained three counts, one, for a breach of warranty, the other two, for a deceit, in the sale of a negro ; but Callahan elected to proceed on the counts for a deceit, which the Court considered, as in effect, a striking out of the - count on a warranty.
Of the two counts in deceit, the first alleged, that Callahan bought, of Wootten & Goolsby, a negro woman for $800. They fraudulently representing the negro, to be sound, except a cold, when she had typhoid fever, of which, she shortly afterwards died. The second alleged, that Wootten & Gools*367by, well knowing the woman to be unsound and diseased, with fever of a dangerous and malignant nature, and concealing this from him, Callahan, sold the woman to him for $800, and that she, shortly afterwards, died of the fever.
The jury found for Callahan, $775, with interest from the 29th of January, 1853.
Wootten & Goolsby moved for a new trial, putting their motion on the following assumed grounds; 1st, that the Court erred in admitting the testimony of Davis, to vary and add to the bill of sale; 2dly, that the Court erred in refusing to compel Davis, to say for what sum he sold the negro bought from the plaintiff; 3dly, that the verdict was contrary to the evidence, and to the weight of the evidence; 4th, that the verdict was contrary to law; 5th, that the verdict was contrary to the law and the evidence; 6th, that the jury found $775 with interest from the 29th of January, 1853; 7th, that the Court erred in charging the jury, that it was immaterial, whether Wootten knew the representations to be false or not; that if he knew them to be false, it was a fraud in fact, and if he did not know them to be false, it was a fraud in law.
This motion the Court overruled, and that was excepted to.
The only ground relied upon, was the seventh and last, and that, we think, was a good ground.
In deceit, it is indispensable, that a scienter be both alleged and proved. Terrell vs. Bennett, 18 Ga. 404; Mares vs. Kenyon, 18 Ga. 291; Chandelor vs. Lopus, 1 Smith’s Lead. Cas. 777.
The judgment, in Bennett vs. Terrell, (20 Ga. 83,) agrees with these decisions.
We think, therefore, that this was a ground sufficient to require of the Court to grant the motion.
Judgment reversed