By the Court. —

delivering the opinion.

[1.] We are compelled to reverse the judgment of the Circuit Court, believing, as we do, that the plea of former recovery is not sustained by the record from Elbert County. It is conclusive as far as it goes; but there is a new element in this case, which was not involved in the issue there, to wit: that of fraud. "Whether a new trial can avail the plaintiff any thing with the opinion of this Court, upon the force and effect of the former proceeding between these parties, it is for the plaintiff, and not for us, to determine. We shall remand the cause with the following instructions : that is—

1. It is the opinion of this Court, and it so adjudges, that the record from Elbert Superior Court is not an absolute bar to the present action.

2. That the former recovery in Elbert County, establishes conclusively, 1st, that Duncan & Christian were partners at the time the note there sued on was given; and 2d, that the said note was given in a transaction connected with the partnership of Duncan & Christian, and in a matter in which Duncan had a right to bind .Christian, and that no evidence is admissible which goes to contradict or gainsay this finding.

[2.] 3. If the plaintiff can show fraud in the conduct of Penn, aside from the foregoing facts, and that he has been injured thereby, he will be entitled to recover to the extent of the damage he has sustained.