
    Bee against Fisher.
    
    
      Wednesday, January 3.
    THIS cause, which was an action for money had and received, was tried on the 17th November, 1820, before Gibson, J. at Nisi Priasy when, by the direction of the Judge, a non-suit was entered, with .liberty to move to take it off. Gibson, for the plaintiff, now stated that he had offered in evidence the original and duplicate of a writing; referred to in a , ,, * t v* y paper signed by the defendant on 23d March, 1815, which the Court refused to-permit to be read to the jury, because it had not been proved that they had been shewn to the defendant, agreeably to the terms of his written agreement.
    Evidence MteTby the*31 Judge, cannot considei'aUon, 9" a mot'1'» tor anew trial* or to take off a non'slllt-
    
      Binney and Chauncey, for the defendant,
    said that the rejection of this evidence had not been noted at the trial, and, therefore, the point was not now open.
   Per Curiam.

The rule is, that evidence received or rejected, and not noted by the Judge, cannot be taken into consideration on a motion far a new trial, or to take off a hon-suit. It appears to us, that after having given the defendant’s receipt in evidence, it ought to have been left to the jury to decide, whether the original or duplicate rejected by the Court, had been presented to the defendant, and, consequently, it ought to have been read to the jury. But the point not being noted, is not now before us. Then, as to non-suit, we think that, upon the evidence which had been given, the plaintiff’s action could not be sustained ; there was nó evidence of any particular sum of money which had come to the hands of the defendant, nor was the defendant bound to pay, according to the terms of his written assumption, until an original or duplicate, as mentioned in his assumption, were presented to him.

Motion to take off non-suit rejected.  