delivered the opinion of the Court:
As a general rule an appellate court acts with hesitation in setting aside the verdict of a jury, unless it is apparent that it is not supported by the evidence. Seeing the witnesses testify, the jury have opportunities of determining the weight due to evidence, that can never be enjoyed by an examination of evidence after it is reduced to writing. Again, however carefully it may be transcribed, it is never precisely the same as it appears at the time when it is given. And, inasmuch as the judge who tries the case sees the witnesses, he can judge from their manner, their intelligence, their means of information and their bias, if they should have any, whether the evidence sustains the finding of the jury. But when a verdict seems to be manifestly against evidence, it is the duty of this court to reverse the judgment, and have the facts again passed upon by another jury.
In this case the only question presented is, whether the jury have arrived at an erroneous conclusion in finding the facts presented by the issues. Davis testifies that while he and the boys, one of whom was appellee, were collecting the scattered papers, appellant passed about thirty feet north of them, and went into the bank. That at that time, there was a strong wind blowing from the south; strong enough to blow papers a considerable distance. It is therefore perfectly obvious that appellant could not have dropped this bill in going to the bank. And Davis is fully sustained in his evidence as to the direction and force of the wind by the testimony of Straight.
This latter witness also testifies that appellant was thirty or forty feet from appellee, when he heard him say that he had found the note. As we understand the evidence, appellant was then returning from the bank, which was situated south of west from the point where appellee picked up the note. And appellant, we infer, was approaching Davis and the boys in a direct line from the bank. It also appears, that Davis and the boys were on the north side of the public square, about opposite to the center of a street leading from the west to the north side of the public square, and that the bank was on the north-east corner of the block lying west of the square. If, then, the wind' was slightly from the south-west, it is apparent that a strong current would enter the square from the west, by this street, which would greatly modify the current from, the south, and would naturally, in carrying the bill the distance of thirty feet, incline its direction to the north-east, and very probably about to the place where appellee was standing at the time. Whilst this is by no means certain, we think it is more than probable.
Appellant proved that he had recently, before the occurrence, owned such a bill. The bank clerk also swears that but a few minutes before appellee picked up the note appellant had one of the same denomination, and dated in the same month, as. the bill in controversy, which appellant was proposing to deposit, and which he examined at the time in reference to the interest then due; that appellant left the bank, with it in his hand,, when he started back to his place of business. And the witnesses all concur in saying that they had heard of no person losing such a bill in that vicinity. If such a thing had occurred it is hardly probable that none of these witnesses would have heard of it. Again, appellee soon afterward went to appellant and claimed compensation for finding the note, when appellant denied that it had been lost. By this claim appellee recognized the ownership of the note as being in appellant, which, while it is by no means conclusive, is a circumstance lending weight to the other facts tending to prove appellant’s ownership.
It is true that, although appellee was not the owner, and was only entitled to hold the note as against all persons but the true owner, and appellant was bound to prove title before he could recover, still he was only bound to prove it by a preponderance of all the evidence. And we think he did so on the trial below, and that the case should be submitted to another jury, and that the circuit judge erred in overruling the motion for a new trial. The judgment of the court below is reversed, and the cause remanded.
Judgment reversed.