By the Court
Lumpkin, J.,delivering the opinion.
We concur with the Court, that the bill of sale made by Cook, the executor, creates no personal liability upon him, *135and that the only ground of defense to the note given for the boy Lawrence is the fraudulent representation as to his soundness. The proof was conclusive as to the diseased condition of the negro, at the time of the sale and previously, and the discrepancies were pretty strong to bring home a knowledge of the fact to Cook; and hence, we think the presiding Judge used too strong language in charging the jury: “ That although the executor (Cook,) stated at the sale publicly, that the negro was sound and healthy, and the best negro of the flock, yet he was not liable, unless it was positively proven that the negro was unsound at the time of the sale, and the executor knew it.”
Now, the unsoundness of the negro, and the knowledge of the executor, may be established by circumstances as well as by direct and positive proof. Both these points were pretty satisfactorily made out — the latter mainly on circumstantial evidence; and yet, the jury, under the instructions of the Court, might have disregarded the testimony entirely, not being postive. And for this cause, we feel constrained to award a new trial, and, I will add, not reluctantly, upon the facts in the record.
It is unnecessary to make any remarks upon the newly discovered evidence, as that can be procured for the next trial.