
    Major, Respondent, vs. Harrison, Appellant.
    1. Judgment reversed for an insufficient finding of the facts.
    
      Error to Howard Circuit Court.
    
    Harrison, being summoned as garnishee under an execution in favor of Major against McMullin, answered that he hired a slave from McMullin, for a specific period, at a rate agreed upon, but that the slave was diseased at the time of the hiring and known to be so by McMullin, and died of the disease shortly after coming into his possession, without having done any work for him, and so he did not owe any thing for the hire. The plaintiff replied that the slave was not diseased when hired, or that if he was, McMullin had no knowledge of the fact. The court, trying the issue without a jury, found the facts to be, that the slave was well known to Harrison, and that the slave’s wife belonged to and lived with him ; that McMullin hired the slave on the 1st of January, 1850, at which time Harrison also tried to hire him ; that McMullin kept the slave about two months, during part of which time he was unwell, which was known to Harrison; and that in February, 1850, Harrison proposed to McMullin to hire the slave of him for the balance of the year, and did so ; that McMullin made no representations ; and that shortly after Harrison took possession of him, the slave, from sickness, became unable to work and continued so until he died. Upon these facts, the court declared that Harrison was liable as garnishee for the hire.
    Gardenhire, for plaintiff in error.
    Clark, for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

This was a case peculiarly appropriate for a trial by a jury. It was one involving a question of fraud in fact. We deem the finding of the court insufficient. The question was, whether McMullin hired the slave to the appellant, Harrison, knowing that he was diseased. From the finding of the court, it would seem that this allegation was met with the fact, though it was not set up as a defence in the answer, that the state of the slave, as to health, was known to the appellant. Now the finding of the court, in relation to this matter, we deem insufficient. We cannot, from the circumstances set forth in the finding, infer that the diseased state of the slave was known to the appellant. Because the slave had a wife at the house of the appellant, and that the appellant wished, some time before, to hire the slave himself, it does not follow, as a matter of law, that he knew the condition of the slave, as to health. What a jury would do, in such a ease, we cannot say ; but surely, from these circumstances alone, we' would never draw the conclusion that the appellant knew that the slave was diseased.

Judge Ryland concurring, the judgment will be reversed, and the cause remanded ; Judge Leonard not sitting.  