
    John Fewster v. Richard Goddard.
    1. In an action upon a promissory note, alleging that there is a specified'amount due thereon, from the defendant to the plaintiff, an answer hy the defendant, alleging payment of the note in full, is an answer setting, up new matter, and must he taken as true in the absence of any reply thereto.
    2. Where an issue is taken on such an answer, the defendant has the right, if there are no other issues in the case, to open and close the evidence- and the arguments. '
    Error to the District Court of Hamilton county.
    The action below was upon a promissory note made by Eewster to Goddard. In his petition Goddard set forth a copy of the note, and alleged that the whole amount. thereof was due to him from Eewster. By his answer Eewster denied that anything was due on the note, and alleged that he had paid it in full. No replication was filed to this answer. The case, without further pleading, was tried by a jury, and on the trial the court ruled that the plain tiff had the right to open and close. The plaintiff gave the note in evidence, and rested his case. The defendant then gave evidence tending to prove the payment of the note, and rested. The plaintiff then gave evidence tending to rebut the evidence of payment by proving alleged admissions of the defendant; and the defendant then ■offered testimony to rebut the plaintiff’s evidence of admissions, but the court rejected the testimony so offered, .and the defendant excepted. The jury returned a verdict for the plaintiff, and judgment was entered thereon. On petition in error this judgment was affirmed by the District Court, and the present petition in error is filed to reverse the judgment of affirmance.
    
      Jacob Wolf, for plaintiff in error:
    Sec. 127 of the Code, 55 Ohio L. 92; Hoadly v. Roby, 6 Hammond, 521; Farrel v. Humphrey, 12 Ohio, 112 ; Code, sec. 266, 3d clause, 65 Ohio L. 190 ; 1 Greenl. Ev., sec. 51; Cowley v. Price et al., 15 Ohio St. 1; 2 Ohio, 230; 16 Ohio, 338 ; 1 Greenl., sec. 461.
    
      Alexander F. Hume and H. P>. Peck, for defendant in error:
    1 Chitty on Pl. 478 ; Code, secs. 137, 138.
   By the Court.

The rulings and judgment of the Common Pleas were clearly erroneous. The answer sets up new matter in confession and avoidance. In the absence of a reply no issue was made, and defendant was entitled to judgment. The parties seem to have proceeded upon the theory that a reply had been filed. The supposed issue which they tried to the jury, was that of payment or no payment. Upon such an issue the defendant would have been entitled to open and close, and the court erred in-holding otherwise, and in rejecting the rebutting evidence-offered by the defendant.

Judgment reversed.  