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 *340Court, 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.