#### A. Pixley, Appellant, v. John Swail, Appellee.

(Not to be reported in full.)

Appeal from the Circuit Court of Lawrence county; the Hon. Enoch E. Newlin, Judge, presiding.

Heard in this court at the October term, 1914.

Affirmed.

Opinion filed May 1, 1915.

Statement of the Case.

Action by A. Pixley, the assignee of two notes purporting to have been signed by the defendant, John Swail, who denied the execution thereof. From a judgment in favor of the defendant, the plaintiff appeals.

The evidence as to the execution of the notes was conflicting. That of the plaintiff was to the effect that they were signed by the defendant, and that his signature was subsequently acknowledged before witnesses, who testified to that fact. The defendant-testified that he did not sign the notes and denied that he ever acknowledged his signatures or requested any person to witness them. He also introduced the testimony of seven witnesses, six of them bank officials, who testified that they were familiar with the defendant’s handwriting, and that the names attached to the notes were not his signatures.

*152Abstract of the Decision.

1. Bills and notes, g 408*—burden of proving execution of note. In an action on a note where the defendant files a sworn plea denying its execution, the burden is on the plaintiff either to prove that the defendant signed the note, or acknowledged before witnesses that the signature was his.

2. Appeal and error, § 1411*—when verdict on conflicting evidence not disturbed. The verdict of a jury based on conflicting evidence will not be disturbed although not in favor of the party producing the greatest number of witnesses.

3. Bills and notes, § 441*—sufficiency of evidence as to signature of matter. A verdict in favor of the defendant in an action on a note will not be disturbed where the evidence pertaining to the genuineness of his signature is conflicting.

4. Bills and notes, § 431*—what instruments may be used for comparison of disputed signature. The fact that a motion and affidavit filed in a cause and bearing the signature of the defendant were shown expert witnesses who testified in relation to the genuineness of his signature to a note, held not erroneous.

S. J. Gee, for appellant.

B. O. Sumner and McGaughey & Tohill, for appellee.

Mr. Justice Higbee

delivered the opinion of the court.