Opinion by
Mr. Justice Paxson:The single assignment of error in this ease is not sustained. *356It was not error to give the jury a binding instruction to find for the defendant, for the reason that there was no evidence which would have justified a verdict for plaintiff. The note in controversy had been lost and some evidence was offered tending to prove its execution, and a paper was produced which the plaintiff contended was a copy thereof. At the close of his case the copy was offered in evidence. The court said:
“It is admitted simply as a proof of the contents of the lost paper; it is not admitted as an executed note at this stage of the case, the execution of the note not being sufficiently proven.” The plaintiffs rested their case at this point and the defendant not having offered any testimony, the court gave- a binding instruction to find for the defendant, to which exception was taken and a bill sealed.
It appears that the paper referred to was admitted merely as a copy of a paper which the plaintiffs had sued upon, and which they claimed to have been signed by the defendant, but the execution of which had not been proved. We need not discuss the question whether the court should have admitted the paper as a copy of a note, the execution of which had been sufficiently proved to entitle it to go to the jury, for the reason that no- exception was taken to the exclusion of the note, and the exception to the charge does not cover it.
Judgment affirmed.