
    John Todd v. James Miller.
    Judgment — Verdict Contrary to Evidence.
    Where the evidence shows from the facts brought out on the trial of a cause, a preponderance in favor of defendant, a verdict contrary thereto will be set aside and a new trial awarded.
    APPEAL FROM PENDLETON CIRCUIT COURT.
    April 27, 1869.
   Opinion of the Court by

Judge Robertson:

There is no substantial error in giving or refusing instructions. But it seems to this court that the verdict was not authorized by the evidence.

The testimony does not allow the imputation of spoliation while the whiskey was in the appellant’s custody, nor of the loss of any of the whiskey by his culpable negligence. On the contrary, the appellee himself seems to have been negligent in consigning the whiskey in defective and leaky barrels and also in not either repairing them properly or substituting good ones. In the course of two years after the deposit, 31 barrels as deposited were necessary for filling 25 full barrels, thus showing that, in that interval, there had been a loss of one-third by leakage and evaporation, but evidently by leakage chiefly; whereby only about one-third of the original quantity remained.' Consequently only an equal rate of leakage for five succeeding years could have left more than five barrels, if as much, which at the highest estimate could not have yielded half the amount of the verdict. Consequently there was no consistent ground for the assessement made by the jury conceding to them the utmost allowable latitude of discretion. And therefore the circuit court en;ed in over-ruling the motion for a new trial.

Fisks, for appellant.

Boyd, for appellee.

Wherefore the judgment is reversed and the cause remanded for a new trial.  