The opinion of the Court was delivered by

Thére was error in permitting the jury to find that the note of 24th March, A. D. 1854, for $400, was included in the recovery had in the Supreme Court of New York. That action was brought upon an account for goods sold and delivered, and there was no evidence that the note was given upon the same account, or that it was in anywise connected with it.

If the note was given for goods sold and delivered, and the recovery in New York included the goods for which the note was given, the defendant’s plea of former recovery might avail him ; but the burden of proof is upon him to show these facts, and as he gave no evidence tending to establish the truth of his allegation that the note was included in the New York judgment, the Court should have directed the jury to find for the plaintiffs, to that extent at least. In referring to the jury the question, whether the note in suit was not included in the recovery, the Court erred, and for this the judgment must be reversed.

Judgment reversed and venire de novo awarded.