delivered the opinion of the court.

It was slightly contended by the counsel for the plaintiff in error, that, when usury has been specially pleaded, and the evidence adduced to support such plea has been adjudged by the court to be inapplicable to the facts so pleaded, the same evidence cannot be admitted upon the plea of non assumpsit. No cases in support of this position have been cited, and it does not appear to be supported by reasoning from analogy. In cases where-there are special and general counts in a declaration, and the evidence does not support the special counts, the plaintiff is allowed to apply the same evidence in support of the general counts. On a parity of reasoning, the defendant should be permitted to give in evidence, upon the plea of non assumpsit, the same facts which were adjudged inapplicable to the special pleas, but which might have been received on the general plea, if the special pleas had not been pleaded.

The counsel for the plaintiff has also contended, that although the paper-writing produced would, on the face of it, import a usurious contract, yet,., as the jury might possibly have inferred from it certain extrinsic facts,, which would have shown the contract not to have been within the act, the jury ought to have been left at liberty to infer those facts. But in this case, the question arises upon a written instrument, and no principle is more-clearly settled, than that the construction of a written evidence is exclusively with the court.

This court is of opinion, that the court below has correctly construed the-instrument upon which the question arose, and that, therefore, there is no.error in the judgment.

Judgment affirmed, with costs.