delivered the opinion of the court.

This was an action on the case to recover from defend* ants $300, obtained by them fraudulently from plaintiff in exchange for thirty counterfeit eagles. It abated by plaintiff’s death, was revived by scire facias, and prosecuted in the name of the executor. Verdict and judgment for $100 — motion for, a new trial made and overruled — exceptions taken and appeal. The error insisted upon at bar was, that the court refused when they should have.granted a new trial. There were two pleas put in by the defendants and joined by plaintiff: 1st. Not guilty: 2d. Not guilty within five years. The testimony conduced strongly and we think satisfactorily, to prove the fraud, and entitled the plaintiff to a recovery upon the first plea. Upon the second plea there was a diversity of evidence. The weight evidence was, that the fraud had been committed more than five years before the Impetration of the writ, but there was testimony proving it to have been practised within five years, and the jury, as we have often decided, arc, in such cases, the proper judges. The other errors assigned, relate to matters in abatement, and were waived by the, pleas.

Judgment affirmed with costs and damages.