
    No. 128.
    John S. Pool, plaintiff in error, vs. Robert Huff and Cornelius Stewart, defendants in error.
    pi.] A motion Aras made for a neAY trial, on the ground, among others, that the verdict was contrary to the evidence. There was no evidence in support of the verdict: Held, that the motion ought to have been granted.
    Trespass, in Paulding Superior Court. Tried before Judge Brown, March Term, 1856.
    This Avas an action of trespass brought by the defendants1in) error against the plaintiff in error for injury done to plaintiff’s hogs. The evidence, as embodied in the motion for a’•new trial, was as follows :
    George I-Iupe swore: About the 1st May, 1854, he found-one of plaintiff’s hogs dead in the creek, on the plantation-, of defendant; did not know who killed it; five others of' plaintiff’s hogs were missing; afine boar of plaintiff’s had-come up shot in the shoulders and s — s; the fence between plaintiff and defendant was a joint fence, and a poor one; had seen defendant’s negroes driving plaintiff’s hogs out off defendant’s field; the hog killed -was worth eight dollars.
    John Hupp, sworn, stated, in substance, the same; and further stated, that he had gone with one of plaintiffs into-the wheat field of defendant and got out hogs, and that the boar shot was worth $25.
    James Austin sworn: He had looked at the fence; saw no water gap at the creek.
    L. C. Pool, sworn for defendant: The hog that was found dead in the creek was shot and killed by witness ; he killed, it for eating his wheat, and for damage done to him and not ■ defendant; that part of defendant’s plantation was in his possession that year, and sowed in wheat; he was defendant’s overseer that year, but did not kill the hog referred to in the discharge of defendant’s business, but on his own account and for damage done to him ; witness shot the boar twice; in the spring before he had seen defendant’s hogs in plaintiff’s field the hogs were run out, but not injured; plaintiffs were notified to keep them out; it was a joint fence; did’nt go ■ with the negroes at all times to run out the hogs; they sometimes went ahead of him.
    Jas. G. Hupp stated, that he heard plaintiff say that L. C. Pool had killed one of his hogs ; that he did not believe he killed the others; that he intended to make old man Pool pay for them.
    The Jury found a verdict for the plaintiff for forty-three-dollars.
    
      Whereupon, Counsel for defendant moved the Court for a new trial, on the following grounds :
    1st. Because the Jury found contrary to law.
    2d. Because the Jury found contrary to evidence.
    3d. Because the Jury found contrary to the charge of the Court.
    The Court over-ruled the motion and refused to award a new trial, and Counsel for defendant excepted.
    Irwin & Lester; Glenn ; Rice, for plaintiff.
    Gartrell, for defendant.
   By the Court.

Benning, J.

delivering the opinion.

Ought the Court to have granted the motion for a new trial ? We think so.

•There was not a particle of evidence against Pool, the defendant. What evidence there was, was all against Pool, the witness.

And as against the witness, the evidence did not make out a case of damage to the amount of as much as forty-three-dollars.

We regret to have to reverse a judgment and grant a new trial in so small a case, but we do not see how granting one is to be avoided»  