This was an action by Moon against Van*202curen, upon a promissory note payable in bank, executed by y an curen to one H. Kennedy and by the latter endorsed to tbe plaintiff, for three hundred and twenty dollars.

The defendant filed an answer of general denial and a paragraph, under oath, specially denying the execution of the note. '

. Trial by the court; finding and judgment for the defendant, a new trial being refused.

The case is before us on the evidence, upon an examination of which we are of opinion that a new trial should have been granted. ■

The case is very similar to that of Nebeker v. Cutsinger, at the present term, 48 Ind. 436; and the law, as decided in that case, entitles, the appellant to a new trial in this.

The judgment below is reversed, with costs, and the cause .remanded for a new trial.

In my opinion, the facts in this case do not bring it within the principle announced in Nebeker v. Out-singer.