OPINION

■ This matter was tried before the Court of Common Pleas without the intervention of a jury, and the Court having heard the evidence and examined the exhibits found that the plaintiff has not established by a preponderance of the evidence that the notes set out in the petition were ever delivered or that the-plaintiff had a right to the possession of the same, and it was ordered by the Court that the defendant be awarded judgment for costs and that the amended petition be dismissed. Afterwards a motion for a new trial was filed and overruled and notice of appeal given upon questions of law and fact.

.This action being one in replevin is not properly before *369this Court on appeal on question of fact. It was, however, considered by the Court upon a bill of exceptions and as an appeal upon questions of law.

We have carefully considered the evidence and the opinion of the Court in this case and the argument of counsel, and are unable to unanimously agree that there is prejudicial error in the judgment of the Court below, in that it is manifestly against the weight of the evidence.

Judgment affirmed and the cause remanded.