Weller v. Hawes

The court, in trying the case, fountj no facts. By the record, we are limited to the question, whether the court erred in overruling the motion for a new trial, based upon the ground that the finding and decisions of the court were against law and evidence, and also on account of the supposed erroneous admission of certain testimony.

i. presume-evidence, The first point which counsel for appellant make is, that the guaranty was without consideration, habeen given after the execution and delivery of the note. But whether it was so given is a controverted *444question, which the evidence leaves in too much doubt to justify us in disturbing the finding of the court thereon.

GuAit. ¡Sian!' notice, It is conceded that the evidence, showing a demand and notice of non-payment to the guarantor, is not satisfactory ; but this is not material, unless it shall furappear that the defendant has suffered prejudice therefrom. The testimony bearing upon the question of insolvency of the maker of the note, when carefully considered as a whole, is equally strong for the plaintiff as for the defense, even aside from that which was admitted against the objection of the defendant. Therefore we could not, consistently with our established rules of practice on this subject, hold that the court erred in overruling the motion for a new trial.

Affirmed.