Novem'r Term. case. trarness had been engaged in driving a wagon on the streets 1879. of Richmond for a year or two and was known to the prisoner, to whom he had sold some second-hand harness of his own the year before the trial. Byers himself says Hey's in his testimony that the prisoner knew nothing wrong about him, nothing to cause him to doubt his honesty, nor did any one else in Richmond know but that he was honest; and when the prisoner sold the harness to Kelly, he said he would vouch for the man from whom he got it; that he knew him and he was all right. The box was taken from the depot by Byers along the public streets in the day time to the prisoner's storehouse or shop, and there deposited. It was opened and the harness taken out in the shop in the day time, publicly and in the presence of witnesses, who testified to what was then said and done. The prisoner being unwilling to purchase the harness at a greater price than he offered, it was left with him by Byers for sale. He kept it for at least a month before a sale was effected. In the meantime, it was never concealed or attempted to be concealed, but was exposed all the time to public view and repeatedly offered for sale to divers persons. The circumstances adverted to, and especially this open conduct of the prisoner, do not seem to be reconcilable with the idea of guilty knowledge. Besides, this is a case of circumstantial evidence, in which the good character of the accused deserves consideration in determining the question of guilt or innocence. It was proved by Joseph J. White, the police justice of the city of Richmond, that he had known the prisoner since 1868; that he had always borne a good character for probity and fair dealings, very good indeed for one engaged in the hazardous busines he was engaged in; by Thomas B. White, a captain of the city police, that he had known him well for four or five years, and that he had never heard anything to cause him to doubt his honesty; Novem'r 1879. by James V. Reddy, that he had known him quite intiTerm. mately since 1868, and that his character for honesty had been as good as any man's; and by James M. Gregory, Hey's that he had known him quite intimately for twelve or fourteen years, and his character for honesty had always been good, as good as any man's, and that he had never heard it questioned by any one. No evidence as to character was offered by the commonwealth. case. After a careful examination of this case, whether the second bill of exceptions be regarded as containing a certificate of the evidence only, or partly of facts and partly of the evidence, (for it cannot be regarded as containing a certificate only of facts, the statements of some of the witnesses as to material matters being in conflict), we are of opinion that the evidence was insufficient to warrant the verdict of the jury, and, therefore, that the judgment of the court below must be reversed, the verdict of the jury set aside, and the cause remanded for a new trial. STAPLES, J., concurred in the opinion of the court on the first point, as to the admission of the witness; but did not concur in granting a new trial. The judgment was as follows: This day came as well the plaintiff in error, by his counsel, as the attorney-general on behalf of the commonwealth, and the court, having maturely considered the transcript of the record of the judgment aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the said hustings court of the city of Richmond erred in overruling the motion of the plaintiff in error to set aside the verdict of the jury and grant him a new trial on the ground that the said verdict was contrary to the law and the evidence; therefore, it is considered and ordered that, for the error afore 1879. Novem'r said, the said judgment be reversed and annulled, the verdict of the jury set aside, and this cause be remanded to Term. the said hustings court for a new trial to be had therein, and for further proceedings, in order to final judgment; which is ordered to be certified to the said hustings court of the city of Richmond. JUDGMENT REVERSED. Hey's case. INDEX. ACTIONS. 2. Quære: Can such an action be 1. Assumpsit by A will lie to re- Garber's adm'r v. Armen- 235 4. When an action for a malicious 1. B, owning a large tract of land, |