There having been no proof offered at the trial except that which was introduced by the plaintiff, the court had an unquestionable right to order a nonsuit, if on such evidence the action was not by law maintainable ; as the court decided in Perley v. Little 3 Greenl. 97.
Upon the general issue, there seems to be no proof on which the defendant can be charged. Mrs. Miller, the promissee and witness, does not pretend that she ever demanded payment of the promissor, or gave notice to the defendant as indorser. She must have known those facts, if they existed. Seven or eight years after the date of the note, she called on the defendant for payment; and his reply to her was the same as was afterwards given to the officer who served the w’rit, viz: that he had never been duly notified as indorser, aud was by law exonerated. Neither is there any proof of a waiver of notice.
But if he had been seasonably notified, after demand made on the maker, still the defence is perfect on the statute of limitations. There is not an expression proved on the part of the defendant which can be construed into an acknowledgment of an existing demand against him; nor any thing resembling an acknowledgment ; both witnesses swear the contrary ; they prove that *161he denied all liability. In the above mentioned case of Parley v. Utile we took a general view of the cases on the subject, and stated the principles by which the evidence adduced to prove a new promise must be tested ; and to that case we refer for authorities and the reasons of our opinion. In that case there was an ambiguous answer given by Little which was relied on as an acknowledgment of the debt; but the court decided otherwise. The' present case is a stronger one for the defendant than that was.
The counsel for the plaintiff contend that the evidence which was introduced should have been submitted to the jury for their consideration. There is no ground for this objection. No facts were in dispute; the defendant did not deny the statements made by the witnesses: but only their legal effect ; and surely the jury were not authorized to decide that question. In Lloyd v. Maund 2 D. & E. 760, it was decided to be the province of the jury to determine what acts or declarations constitute a new promise, or an acknowledgment ; but that decision was overruled in Bicknell v. Keppel 1 New Rep. 20, and Mr. Day, in his notes to the action Baillie v. Inchiquin 1 Esp. Rep. 435, says “that in "every other reported case except that of Lloyd v. Maund, the "question has been determined by the court.” Such has been the principle and the practice in Massachusetts and in this State. On every ground we are very clear that the nonsuit was correct - ly ordered. Consequently the exception is overruled, and there must be
Judgment for the defendant.