It is admitted, in the argument, that the instructions given by the judge, on the subject of the sale and. delivery of the goods, and their identity with those specified in the bill of particulars, were substantially in conformity with the defendant’s prayer, and were correct in law. It seems to the court, that this disposes of the bill of exceptions. The instruction prayed for, and the instruction given, turned wholly upon the burden of proof, and the necessity laid on the plaintiff to prove the sale, delivery and identity of the specific goods, as marked, numbered, and described.

It is now urged that some directions should have been given on the subject of payment. If there was any evidence of payment relied on and submitted to the jury, it could hardly present a controverted question of law. If the goods had been paid for, this would of course have been a complete defence, *18but it was a pure question of fact on the evidence. The con elusive answer, however, is, that no direction was asked for on the subject of payment; and if any was given that was erroneous, or if that given could seem, by any implication, to withdraw the attention of the jury from the consideration of payment, it should have been excepted to at the time, and the proper instruction asked for.

jExceptions overruled.