
    Chamberlin v. Smith’s administrator.
    It is the province of the jury to judge from the circumstances of the case, whether an admission by the defendant, that he was indebted to plaintiff, related to the note sued on, to determine the issue of non-assumpsU,withinJiDe years; and where there is testimony relative to the issue, the Court cannot instruct the jury that there is none.
    APPEAL from St. Louis Circuit Court.
   Pettidone, X,

delivered the opinion of the Court.

This was an action of assumpsit, on two promissory notes, made in the State of Massachusetts, in the year 1811. The defendant pleaded, first, non-assumpsit; second, non-assumpsit within five years.

The plaintiff replied to the second plea, that defendant did assume and promise, within five years, &c.; on which, issue was joined. The jury found for plaintiff on "both issues, and judgment was rendered for the plaintiff accordingly; from which judgment the defendant appealed.

On the trial, there was considerable evidence given by the plaintiff, to support the second issue, which is unnecessary to detail, as no exception is taken to its competency.

The defendant gave no testimony, but moved the Court to instruct the jury, first, that unless they believe that Oliver C. Smith admitted the same demand on which this suit is brought, to be due within the time mentioned in said plea, they must find for the defendants; which instruction was given. This instruction was correct; and if it were not, the defendants in the Court below, who- are the appellants, are estopped from objecting to it, as it is given agreeably to their prayer. The defendant also requested the Court to instruct the jury, that a general admission of being indebted to the plaintiff, is not a proof of the particular demand sued on ; which was refused by the Court, and the jury were instructed, that it was the proyince of the jury to. decide, from all the circumstances in the case, whether the acknowledgment made-related to the note sued on or not. The instruction given was correct, and was more proper than the one requested. There is no error, therefore, in that instruction.. The defendant's counsel then requested the Court to give the following instruction •. that there is no evidence in the case, to prove an admission on the pait of Smith, that he was indebted to said plaintiff, on the demand sued on; which instruction the Court refused. We are of opinion that the Court was correct, in refusing this instruction. The bill of exceptions shows, there was evidence before the jury, relevant to the issue. After a verdict for the plaintiff, the defendant moved for a new trial, for the - following reasons;

First. That the jury found their verdict without evidence.

Second. That the finding of the jury was against law.

Third. That the Com t misdirected the jury; which motion the Court overruled.. We have already decided, that there was evidence relevant to the issue before the jury, and that the Court did not misdirect the jury; and we cannot see how this finding was against law. The Judge was, therefore, correct, in refusing a new trial, for the reasons assigned.

The judgment oí the Court below must be affirmed, with costs..  