This case is not properly here. The facts reported simply afford competent evidence tending to prove or disprove the issue between the parties, and which might justify a verdict either way. In such a case, "the court will not assume to pronounce upon the weight of evidence." Pray v. Burbank, 11 N.H. 290; Howard v. Farr, 18 N.H. 457, 459; Whitcher v. Dexter,61 N.H. 91, 92; Jones v. Aqueduct, 62 N.H. 488.

Whether the defendant assumed a personal liability, as claimed by the plaintiff, and whether the circumstances attending the transaction were such as should have put the plaintiff on inquiry, as contended by the defendant, are questions of fact which must be settled at the trial term. Kaulback v. Churchill, 59 N.H. 296, 297; Janvrin v. Janvrin, 60 N.H. 169,172, 173; Preston v. Cutter, 64 N.H. 461, 468, 469.

Case discharged.

CLARK, J., did not sit: the others concurred. *Page 564