
    
      John A. Colclough vs. William Rhodus, adm'r. of D. Brunson.
    
    In debt on judgment, under a plea of payment, the defendant cannot properly be allowed the benefit of a partial payment. Where, however, under such a plea, evidence of a partial payment was given, without objection, and the jury allowed it, the court of appeals refused to set aside the verdict and order a new trial.
    The proper mode of obtaining credit on a judgment for a partial payment is by rule to shew cause, semble.
    
    The court may in its discretion permit a witness to return to the stand and testify after a case has been submitted to the jury and they have been addressed by counsel, 
    
    
      Before Butler, J. at Sumter, Spring Term, 1845.
    The report of his Honor the presiding Judge is as follows.
    
      “ This was an action of debt, on a judgment recovered against the defendant’s intestate-in 1830. The principal of the judgment was six hundred dollars.
    “The defence relied on was, that in 1838 the intestate paid to plaintiff eight hundred and fifty dollars, which he directed, at the time, should be applied, as far as it would go, to the satisfaction of the judgment. The exact state of the pleadings was not brought to my notice. There may have been a general plea of payment, but I understood that the defendant relied on a special notice of his defence under a notice of discount, to which the statute of limitations was pleaded.
    “William Hilton, on the part of the defendant, swore that his father bought a tract of land of the intestate, and that, by way of paying for it, he became paymaster to Col-clough, the present plaintiff ; and that in February, 1838, his father, in the presence of .Brunson, paid eight hundred and fifty dollars. A receipt was introduced, purporting to have been signed in January, for this amount, to D. Brun-son, signed by Colclough.
    “This paper did not express upon what account the money was received — nor did the witness Hilton, in the first place, say how it was understood the money was to be applied.
    “On the part of the plaintiff, it was contended that the eight hundred and fifty dollars should have been, and was in fact, applied to other demands which plaintiff held against the defendant. And to support this view of the subject, some testimony was introduced on the part of the plaintiff.
    “Upon the facts, Mr. Haynesworth addressed the jury on the part of the defendant. When Mr. DeSaússure was about commencing his remarks on the same side, he said that he • understood Hilton, the witness, to say that the intestate had directed the eight hundred and fifty dollars to be applied to the judgment at the time it was paid. ■ The counsel on the other side denied that the witness had said so. And I was not certain what the witness had said, but was under the impression that he said nothing about the application of the money. Under these circumstances, hé was called back to the stand, and said that when the money was paid, the intestate remarked, “that will go to the judgment.” The argument proceeded, and the question of fact was discussed, whether the eight hundred and fifty dollars was directed to be applied to the jugment* or whether it was applicable and should be referred to other demands-. Under suitable explanations, the case went to the jury^ who found for the plaintiff the balance of his judgment-, ■after deducting the eight hundred and fifty dollars, as a payment made in January, 1838.”
    The plaintiff appealed, and now moved this court for á new trial, on the following grounds.
    1. Because his Honor permitted the defendant to recall 'a witness to the stand, and allowed him to testify to a ne\V fact, after the testimony had closed, and one of the defendant’s counsel had finished his address to the jury.
    2. Because his Honor erred in permitting the defendant, under the plea of payment in full, to give in evidence and rely upon a partial payment.
    3. Because his Honor erred in charging the jury that, under the plea of payment, they could find a partial payment.
    
      J. >$. G. Richardson, for the motion,
    cited, on the firs! ground, Price ads. Jenkins, 1 N. and McC. 153, and on the second ground, Anderson vs. Gage, Dud. 319.
    
      Haynesworth, contra.
    
      
      
         Vide Browning vs. Huff, 2 Bail. 175. ' R.
    
   Curia, per ButleR, J.

Under no view of the pleadings, in this case, could the defendant have been deprived -of his right to have his defence tried on its merits. He -contended that he had made a partial payment on the .judgment, which had not been credited. It was in his power at any time to have a rule served on the plaintiff to shew cause why the payment contended for should not he applied, at the time it was made.

In cases of partial payments on judgments, this is the most approved and regular course of proceeding. The plea of payment to a judgment, is one in bar, and should go to the entire amount of the judgment; Anderson vs. Gage, Dud. 319. Such plea was filed in this case, and the defendant gave notice that he would also rely on his payment by way of discount. This could only serve as notice of his demand, and ought not to have subjected it to the disadvantageous incidents of a discount, in its proper sense, for as such it would have been barred by the statute of limitations. The case was developed according the facts and not in reference to the state of the pleadings. The inquiry for the jury was to astertain and determine whether the defendant was entitled to any sum, and what amount, by way of partial payment. Although they attained their conclusion without a rule, as would have been more regular, they did so under the same state of facts as would have come out under such rule. No objection having been taken to the testimony when it. was offered, it properly went to the jury.

The circumstances under which the witness was allowed to explain his evidence, were such as to justify the course pursued by the presiding Judge. '

Motion refused.

RichaRdson, O’Neall, Evans, Wardlaw and Frost,, JJ. concurred.  