delivered the opinion of the court.

This was a suit on a promissory note, non-negotiable, made by the defendant Boernstein, for five hundred dollars, and payable to the defendant Jacoby six months after date ; it being dated 9th May, 1857. The petition alleges an assignment and delivery of the note by Jacoby to the plaintiffs, protest, presentment for payment, and notice to the defendants.

The answer denies the endorsement and delivery of the note to plaintiffs; that the note was protested, or that notice thereof was given to the defendants. A motion was filed by the defendants with an affidavit for a continuance, which was overruled; whereupon the cause was tried by the court and judgment given for plaintiffs for five hundred and thirty-five dollars and fifteen cents. This case is like that of Ivory v. *145Carlin et al., decided at this term, and for the reasons given in the opinion in that case the judgment is reversed and the

cause remanded;