refused the order to go in evidence to the jury because it was not stamped.

They also instructed the jury that the plaintiffs could not recover on the defendant’s promise, unless he had signed a note in writing promising to pay, &e. That it being a conditional promise did not take it out of the statute of frauds. And that the entry in the defendant’s books was not a sufficient note in writing to charge the defendant.

They refused to instruct the jury that if at the time of the promise the defendant was indebted to Bryan in a sum equal to *78the plaintiffs’ claim, the evidence was applicable to the count for money had and received.