delivered the opinion of the court.

The defendant, sued on his promissory note, pleaded it was given for the balance . which he was, through error and by the fraud of the plaintiff, induced to recognize as due on a settlement of accounts. There was judgment for the latter, and the former appealed, after a vain attempt for a new trial, on the ground of the judgment being manifestly contrary to the evidence.

The case turns entirely on a question of fact. The inferior judge has expressed his opinion that there is much obscurity in the affair; that it lay with the defendant to explain it, and he did not do so satisfactorily. In this view of the case, we concur.

The defendant has now presented the obscurity of the affair, complained of by our learned brother, as a reason for our x remanding the case for another trial. There is no ° “ ° tion that any new evidence may be adduced, and as the arguments of the counsel have, failed in dispelling the obscurity *72jn the affair, there is little hope that any new argument " J. J o might render the counsel’s efforts more successful; especially as he might have the benefit of it in this court.

The appellee has prayed for damages as on a frivolous case. The case may be said to be a doubtful one, and we may believe the defendant believed he might be benefited by an appeal.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.