No. 81—2195.

#### The Pennsylvania Co. v. Chandler S. Redfield et al.

This was an action by appellant against appellees as sureties upon the bond of one Broomhall, for the faithful performance of the duties of the latter as agent of appellant at Englewood, in this county. The breach assigned was the failure of said Broomhall to pay over to the proper agent of the appellant the sum of three thousand dollars, which had come into the hands of said Broomhall as agent of appellant, at Englewood, aforesaid; which breach the defendants traversed by plea. The case was tried by the court without a jury, and the court- found the issues for plaintiff -; the debt,, the penalty mentioned in the bond, and damages in the sum of fifteen hundred and nineteen dollars; upon which finding judgment in proper form was given. The plaintiff brings the case here by appeal, and assigns for error, that the amount of damages found should have been larger. The court is of opinion that appellant’s counsel have failed to point out of the complicated mass of evidence in the record, the evidence which demonstrates the error relied upon. The mere conclusion of witnesses upon a question which the court, sitting in the place of a jury, was just as competent to determine as theysvitnesses, will not suffice to establish that clear weight and preponderance required by *639our practice to justify the interference of an appellate court, with the findings of the court below, when sitting for the determination of facts, or the verdict of a jury.

Judge below, Joseph E. Gary.

Attorneys, for appellant, Messrs. Willard & Driggs ;

for appellee, Messrs. C. H. & C. B. Wood, and Mr. A. H. Yeeder.

Opinion filed Jan. 6, 1886.

Opinion by McAllister, J.