Napton, J.
— This case was before this court in 1875, and the opinion then delivered was not formed hastily or without due deliberation, nor are we now disposed to change it. The main objection then made to the note was that Henshaw, the obligee, had failed to procure his release from a partnership indebtedness of himself and Dutton to a note to Beattie & Co. But we were unable to see then, and cannot yet understand, how this could operate to the prejudice of Dutton; on the contrary, it would seem to have operated in his favor, and if Henshaw chose to waive it, the refusal of Beattie & Co. to discharge him could not *667Lave injured the defendant. In the case as it was tried in 1875 tbe execution of the note was conceded. In the present case its execution is also condeded, but it is denied, under oath, that the note was delivered. There is no material difference between the defenses then and now. The statement of the defendánt was, as a witness : “ I signed my name to the note and deed of trust, and left them on my table. I never delivered them to plaintiff. Plaintiff took up the papers from the table, and we went around to the banking house of Beattie & Co.,” &c. The court instructed the jury that, under the pleadings and admissions in the case, theplaintiff is entitled to a verdict, &c., for the amount of the note and interest, &c. There was no question oí fact to be submitted to the jury; the legal effect of the course of both plaintiff and defendant was considered in all its aspects by this court in the former opinion, and, therefore,
with the- concurrence of all the judges,
the judgment must be affirmed.
Affirmed.