— There is no error in the refusal of the court below to instruct the jury, as in case of non-suit; for, admitting the evidence was insufficient to establish the acceptance o.f the order declared on, specially; yet it was proper to be received on the money counts, and the party is too late, after pleading to issue, with the objection, that these counts were not properly inserted in the declaration. If such was the case, we should be compelled, continually, to decide in this court, all the questions which arise when there is a variance between the writ and declaration.
We do not wish to be understood as admitting, that it is irregular to file the money counts, when the action is brought on a written instrument, and that alone is endorsed on the writ. That question need not be decided, until it is presented for adjudication.
But it is insisted, that the charge of the Circuit court determined the facts of the case, and withdrew them from the consideration of the jury. We cannot arrive at this conclusion, from the statement in the bill of exceptions. It frequently happens, in practice, that counsel and parties admit, or do not question, the facts in evidence, *261but request the instruction of the court, on the law arising from them, as if they were assumed to be true. In this case, it is evidently so, for on no other reason could the request have been made to non-suit the plaintiff. It was as much as to say, the facts in evidence are admitted, but they constitute no legal cause of action.
This view of the case is sustained by the whole bill. All the evidence is stated, and no question is made either as to its admissibility or truth. To permit the party now to allege that the charge was given, not on the law, but the facts of the case, would be productive of no beneficial results. The correctness of the charge, admitting the facts to be true, is not controverted, nor indeed could it be, as no issue was made by the pleadings, under which a set-off could be given in evidence without notice, and the allowance of it by the plaintiff, was a favor accorded to the defendant, and was not a right which he could insist on.
The judgment must be affirmed.