
    Swarts and Another v. The State, on the relation of Parchey and Wife.
    In this case, the evidence is in the record, but there was noimqjtooWor a new trial. The question whether the evidence sustains the juftgrmnt is not! fore the Court.
    APPEAL from the Warren Court of Common Error.
    Saturday, June 6.
   Per Curiam.

This was an action by the state on the relation of Joseph Parchey and Mary, his wife, agaih t Daniel Swarts, an executor, and his sureties, upon a bond in the penalty of 3,200 dollars.

The bond recites that letters testamentary, with the will annexed, had been duly granted to said Daniel, upon the estate of John Smarts deceased; and is conditioned, in the usual form, that the executor faithfully execute the duties and trusts committed to him, &c.

For breach, it is alleged that in and by said will, Mary Parchey, one of the relators, was entitled to a legacy of 50 dollars, which Daniel Smarts, the executor, was required to pay; that said executor, at the April term, 1853, of the Warren Common Pleas, fully settled the estate of the decedent, and that the 50 dollars was then retained by him to pay over to the legatee; and that the relators, in December, 1854, demanded said legacy of the executor, but he refused payment, &c.

B. F. Gregory and J. Harper, for the appellants.

R. A. Chandler, for the state.

The defendants answered that Darnel Sivarts did faithfully perform his duties as executor, &c.; that he has always been ready to pay the 50 dollars for which the plaintiff sues; but that the relators did not, at any time before the commencement of this suit, demand the same; nor have they ever authorized any one to receive the money, &c. There was a reply in denial of the answer, &c.

The cause was submitted to the Court for trial, and final judgment given for the plaintiff.

The record contains a bill of exceptions which sets forth the evidence given on the trial, and states an exception to the judgment, which appears to be the only objection raised to the action of the Court. The decision of the cause turns upon the weight of evidence; but the defendants below, having failed to move for a new trial, the question whether it does or does not sustain the judgment, is not properly before us. We have, however, looked into the evidence, and are- of opinion that the Court, in its finding and judgment, committed no error.

The judgment is affirmed, with 10 per cent, damages and. costs.  