delivered the opinion of the court.

There is nothing in this case for which it should have been brought here. The objection to the depositions, growing out of the alleged want of notice, has no foundation in fact, as the notice, with its service, is in the record.

The entire correspondence between the note sued on in Iowa and described in the record of the judgment obtained in that state, and that set out in the petition in this cause, amply sustained the court in the finding that it was the same instrument. There was no evidence that there were two notes alike in sums, dates and terms of payment between the parties to that instrument. The evidence, under the circumstances, was almost conclusive.

The obligation incurred by the defendants, was to pay the entire debt for the plaintiff. The plaintiff, by the terms of the agreement, was to be released from the aforesaid liabilities by the defendants paying the whole amount of the said debts. One of these debts was afterwards sued on, and a judgment was recovered in Iowa against the plaintiff, which he satisfied.

As this was a trial by the court, there was no impropriety in refusing instructions. The law is properly declared on the facts found. The judgment is affirmed, with ten per cent, damages ;