By the Court.

delivering the opinion.

It is admitted that the note sued on was given for the legacy coming to the plaintiff, in right of his wife, from her father’s estate, and that this constituted the only consideration for the note. The defence: that it was given for too much. To prove this, the defendant introduced an exemplification of his returns to the Ordinary. The jury were satisfied by a calculation, that there should be deducted from the note, some four hundred dollars ; and this we hold they had a right to do, independent of the parol agreement alleged to have been made, that any mistake might be rectified. This condition is implied in every such settlement. Indeed, although the parties were silent upon the subject, and a re*211ceipt in full had been given, still, it would be subject to be re-opened, the burthen being upon the party alleging the error. True it might be waived. Such is not our understanding of the conduct and conversation of the parties, at the time the note was given. The dispute was as to a portion of the returns, respecting the board of plaintiff’s wife. The returns as to these, were jr>rima facie evidence in favor of Stephenson, the executor, and if not falsified, conclusive. The jury were the proper tribunal to decide this matter.

The plaintiff complains of surprise in allowing th'e records of the Ordinary to come in as proof. Why should he be? The defendant, by his plea, notified him that he should rely on this defence. He should have come prepared to rebut it.

It is argued that the rule should work both ways, and yet, that if the returns showed a larger balance due the plaintiff, than the note called for, he could not recover the excess; and it is true he could not, in the present action. Still, he could in another form; and this does not show that the defendant is not entitled to have his note abated, to the extent, that the consideration has failed. If Courts of law could grant adequate relief, as the Legislature ought to enable them to do, the plaintiff in the case supposed, might have judgment for the excess.

Judgment affirmed.