
    Bollenbacher v. Able.
    Supreme COURT.—Conflicting Evidence.—The Supreme Court will not reverse a judgment on the evidence, where it is conflicting and consists of the testimony of witnesses who testified in the presence of the lower court. -
    APPEAL from the Monroe Common Pleas.
   Pettit, C. J.

This suit was brought by. the appellee against Heppert and Bollenbacher on a note given by them to Able. Heppert was defaulted; Bollenbacher answered, first, admitting the execution of the note by himself and his co-defendant, Heppert, but that before the commencement of the suit, Heppert fully paid and satisfied the -note, bypaying the full amount thereof to one Isaac Kahn, at the instance and by the direction and request of the plaintiff; second, that Heppert was the principal in said note, and that he, Bollenbacher, was only security therein.

G. A. Buskirk, J. S. Hunter, and W. R. Harrison, for appellant.

A H. Buskirk and J. W. Buskirk, for appellee.

The plaintiff l-eplied to these answers by general denial. Trial by the court, finding.for the plaintiff for the amount of the note and unpaid interest. A motion for a new trial was made and overruled, and j udgment was rendered on the finding for the plaintiff. The only question presented in the record for our consideration is the correctness of the finding of the court on the evidence, all of which is set out. We need only say that it is conflicting, to determine this case; but we add that, in our opinion, it is strongly in favor of the finding of the court below, and that the judge who tried the case, heard and saw the witnesses, and perhaps knew them all and all the surrounding circumstances, was better able and qualified to judge of and determine the weight, credibility, and force of their evidence than we are, even if we had a right to enter into it, which we have not where it is, as in this case, clearly conflicting.

The judgment is affirmed, with five per cent, damages, at the costs of the appellant.

Buskirk, J., having been of counsel, was absent.  