#### Wilhelmina Schwarz v. William H. Bradley et al. Exors.

Filed at Ottawa May 18, 1880.

Appeal from an Appellate Court—as to a review of the facts. On an appeal from an Appellate Court to this court, in a proceeding -wherein the only question presented for review is one of controverted fact as to whether two certain notes had been executed by the person whose name appeared to be signed to the same, and which had been presented for allowance against the estate of the apparent maker, the finding of the Appellate Court will be regarded, under the Practice act, as conclusive.

Appeal from the Appellate Court for the First District.

Mr. Melville W. Fuller, for the appellant.

Messrs. Tenney & Flower, for the appellee.

Mr. Chief Justice Walker

delivered the opinion of the Court:

This was originally a claim filed in the county court for allowance against the estate of Augusta Wolf, deceased. On a hearing the court refused to allow the claim, and rendered judgment against appellant for costs. The cause was removed to the circuit court by appeal, and the judgment of the county court was affirmed. Plaintiff then prosecuted an appeal to the Appellate Court, with a like result. And the record is brought to this court, and error is assigned thereon.

The only question arising on this record is one of fact. And it is whether deceased, in her lifetime, executed two notes or memoranda in writing, promising to pay appellant two several sums of money. It is claimed by appellant the notes were executed and delivered to her, but they were destroyed by the fire of October, 1871, but what were copies, made from memory soon after their destruction, were produced, and efforts made to prove their execution and destruction of the *169originals. That such instruments were ever made was controverted and vigorously resisted by the executors. This was the fact in issue, and it was controverted. The circuit court found the fact in favor of the executors. On a hearing the Appellate Court, on all of the evidence in the case, affirmed the judgment of the circuit court, thereby finding the facts the same as had the circuit court.

The 89th section of the Practice act (Sess. Laws 1877) provides that where cases shall come from the Appellate Court to this court, it shall examine questions of law only; “and no assignment of error shall be allowed which shall call in question the determination of the inferior or Appellate courts upon controverted questions of fact in any case, excepting those enumerated in the preceding section.”

This is not one of either class that is excepted, and is, therefore, governed by this provision. The fact being determined by the circuit and Appellate courts, we must accept their finding as conclusive, and refuse to look into the evidence to see whether it sustains the finding.

No question of law being presented the appeal was improperly granted, and it must be dismissed.

Appeal dismissed.