
    Fisher v. Martin.
    New TMAli — will not be granted upon conflicting evidence, where the jury have fairly passed upon the credibility of the witnesses.
    
      Appeal from District Court, Arapahoe County.
    
    The facts are stated in the opinion.
    Mr. Alfred Sayre and Mr. Chas. W. Wright, for appellant.
    Mr. T. GK Putnam, for appellee.
   Hallett, O. J.

Assumpsit upon a promissory note, and plea the general issue, with notice that the defendant would rely upon the statute of limitations, and upon payment made to the payee after maturity.

Appellant, who was defendant below, testified that the note was in the hands of the payee at maturity, and that he delivered to him certain wagons as security for the note, with the understanding that the value of the wagons was to be applied in satisfaction of the note, if the same should not be paid, and that the wagons were never returned. Another witness testified to the same facts. Opposed to this is the testimony of appellee as to admissions made in the year 1863, and other admissions made after the commencement of this suit. Two witnesses, who do not appear to have any interest in the controversy, testified to appellant’s declarations, that he would have paid the note if suit had not been brought. Upon this evidence we are unable to say that the verdict of the jury is unsupported. It is the ordinary case of a conflict in the testimony, and a decision by the jury in favor of one party, which the court will not disturb. The judgment of the district court is affirmed, with costs.

Affirmed.  