#### E. R. COATS et al., Administratrix, v. A. E. NORRIS et al., Administratrix.

(Filed 29 September, 1920.)

1. Courts — Discretion—New Trials — Appeal and Error.

A motion to set aside a verdict and grant a new trial is made to the discretion of the trial judge, and not reviewable on appeal.

3. Evidence — Questions for Jury — Trials.

Held,, in this case, the evidence was súfficient to be submitted to the-jury on the issues raised by the pleadings.

Waikeb, J., dissenting.

*78Civil aotioN, tried before Bond, J., at February Term, 1920, of HARNETT.

Tbe following issues were submitted:

“1. In what sum, if anything, is defendant, administratrix, indebted to tbe plaintiff, Mrs. A. Y. Coats, as to wbicb sbe was indemnified by tbe terms of tbe bond sued upon to wbicb defendant’s intestate, Jobn E. Wilson, is alleged to bave been surety? Answer: ‘$2,348, witb interest from eacb date of judgment first paid in making up said amount.’

“2. In wbat sum, if anything, is defendant, administratrix, indebted to tbe plaintiff, Mrs. A. Y. Coats, administratrix of E. R. Coats, as to wbicb sbe was indemnified by tbe terms of bond sued upon, to wbicb defendant’s intestate, John E. Wilson, is alleged to bave been surety? Answer: ‘Nothing.’ ”

From tbe judgment rendered tbe defendant, E. J. Wilson, adminis-tratrix of John E. Wilson, appealed.

Young & Best for plaintiff.

J. F. Wilson and Clifford & Townsend for defendant.

BbowN, J.

This action is brought to recover from tbe surety on a penal bond for money paid out by tbe plaintiff and alleged to be covered by tbe terms of tbe bond. Tbe evidence tends to prove that E. R. Coats A. V. Coats and A. E. Norris were partners, trading as tbe Norris Dry Goods Company, prior to 23 May, 1910.- On that date A. E. Norris purchased tbe interest of tbe other two partners in tbe assets of tbe company, and assumed tbe liabilities of said company, and executed a bond in tbe sum of $5,000, witb John E. Wilson as surety, to indemnify and bold tbe two Coats harmless against having to pay any of tbe indebtedness then outstanding against tbe Norris Dry Goods Company. Tbe complaint alleges that tbe plaintiff, A. Y. Coats, was compelled to pay $2,348 of indebtedness wbicb tbe said Norris Dry Goods Company were owing prior to 23 May, 1910, and seeks'to'recover said money from A. E. Norris and bis bondsman,' John E.-Wilson.

There are only three assignments of error. Tbe first relates to tbe alleged error of tbe court in permitting tbe plaintiffs to introduce as evidence certain judgments upon tbe ground that there was no evidence to show that these judgments were founded upon an indebtedness of tbe Norris Dry Goods Company incurred prior to tbe execution óf tbe penal bond. We are of opinion that this contention cannot be maintained.

It is useless to set out tbe evidence or comment upon it. Tbe issue was presented to tbe jury in a very clear and comprehensive charge, and has been found for tbe plaintiff witb abundant evidence to support tbe finding.

*79Tbe second assignment of error is to tbe refusal to grant tbe motion to nonsuit. Tbis motion was properly denied for tbe reason given. Tbe third assignment of error is to tbe refusal of tbe court to set aside tbe verdict and grant a new trial. Tbis is a matter witbin tbe sound discretion of tbe judge, and is not reviewable by us, as bas been beld in innumerable cases.

No error.

WaiKee, J.,

dissents, because there was no sufficient evidence that tbe judgments were based upon debts, which were witbin tbe terms of tbe indemnity bond.