
    SMITH v. RUSK et al.
    
    Where, in a suit by S. on a note payable to K. “ or bearer,” the defendants deny the title of the plaintiff, and establish payment to IC, and where the evidence as to the ownership of the note is conflicting, this court will not interfere with the discretion of the trial judge in refusing a new trial.
    Submitted November 3,
    Decided November 16, 1903.
    
      Complaint. Before Judge Gober. Cherokee superior court. February term, 1903.
    
      G. I. Teasley and P. P DuPre, for plaintiff.
    
      J. P. Broolce, for defendants.
   Lamar, J.

Smith sued ou a promissory note payable to Kitchens “ or bearer.” Defendants denied that Smith was the owner, and pleaded payment to Kitchens, and supported the plea by the latter’s evidence and a receipt dated three days before the maturity of the note. It appeared that Smith and Kitchens had been partners; and that an execution against the firm was about to be levied on the individual property of Smith, who obtained the note from Kitchens to be deposited with the plaintiff in fi. fa. as collateral for the payment of the execution debt, so as to avoid a levy. The fi. fa. was subsequently discharged by Smith, with the result that under the agreement the note again became the property of Kitchens. Smith claimed that afterwards and before its maturity Kitchens agreed that the amount of the note should be credited on a debt of $700 due by him to Smith. , This was denied by Kitchens. The evidence being conflicting as to the fact of the transfer and whether it was before or after maturity and payment by defendants, no error of law being assigned, and the trial judge having exercised his discretion in refusing a new trial, the judgment is Affirmed.

All the Justices concur.  