SOUTHERN GRAND DIVISION.

JUNE TERM, 1876.

#### Alexander McClelland et al. v. Abram Mitchell.

New trial—ore finding from evidence. Where the evidence as to a particular issue is conflicting, a new trial will not be granted unless the finding of the court, where the trial is without a jury, is palpably against the weight of the evidence.

Writ of Error to the Circuit Court of Marion county; the Hon. Amos Watts, Judge, presiding.

Messrs. Casey & Dwight, for the plaintiffs in error.

Mr. Geo. W. Wall, for the defendant in error.

Mr. Chief Justice Sheldon

delivered the opinion of the Court:

This was a suit brought by Mitchell against six makers of a promissory note for $3000, given December 20,1869, and payable on or before December 20,1870, with ten per cent per annum interest, upon which were indorsed sundry credits.

*36The defendants pleaded usury, setting up that the note in suit was given in place of a previous note given to Mitchell by three of the defendants on the 1st of September, 1868; that in the first note there was reserved interest at the rate of fifteen per cent per annum, and that the second note was a mere continuation of that original transaction.

The case was before this court at a former term, and is reported in 77 Ill. 525, where, without expressing any opinion as to the sufficiency of the evidence as showing usury in the first note, it was held that, admitting to be true all that the defendant’s testimony tended to prove, the facts would not show that the second note, the one now in suit, was tainted with usury, and the only effect would be, if there had been usury in the first note, to subject the second note to a deduction of the amount of interest which had been paid on the first note. The case, having been remanded, came on to be tried again before the circuit court of Marion county, at the February term, 1876.

By agreement of parties, the cause was submitted to the court for trial without a jury, the issues were found for the plaintiff, and the damages assessed at $2593.85, which was the sum appearing to be due upon the note, supposing there was no deduction to be made on account of usury. The defendants took this appeal from the judgment.

The error assigned is, that the finding of the court was contrary to the evidence.

The court below must have found there was no usury in the first note. ' The evidence upon that subject was contradictory. Without reviewing it, we will say that, after a careful examination of the whole testimony, we can not say that the finding of the court was so palpably against the weight of evidence as to require that it should be disturbed.

The judgment must be affirmed.

Judgment affirmed.