
    Neil McColgan, plaintiff in error, vs. Neil McKay, defendant in error.
    It is almost a matter of coarse, to let iu oevr evidoaoe on a point, to save a non-suit.
    Assumpsit, from Sumter county. Tried before Judge Axlen, March Term, 1858.
    Plaintiff, McColgan, sued defendant McKay on the following bill of particulars.
    Neil McKay to Neil McColgan, Dr.
    To balance on setdement of partnership between you and me found, and acknowledge due me, $520,00.
    
      On the trial plaintiff offered in evidence an account, stating items particularly, signed by the defendant. The part of this bill of exceptions giving a copy of this account is written so badly as not to be readable. Defendant’s counsel objected to the account upon the ground that there was no sufficient evidence to authorize the plaintiff to recover; upon which motion the Court, remarked that , he would allow it to go to the jury, to which the plaintiff excepted.
    Plaintiff closed his case and defendant moved for a non-suit, which the Court granted. The plaintiff moved to be allowed to open his case and prove that the paper which was admitted to be signed by defendant was given in 1S53, after a full and final settlement of the partnership, set out in ihe declaration, and was an acknowledgment of an indebtedness of $520, from the defendant to the plaintiff, which the Court refused, holding that when the plaintiff closed his case, he closed taking all the responsibility of what the Court would decide, and the case could not be opened, especially when the plaintiff had notice of the previous rulings of the Court in the case; whereupon plaintiff excepted, and^ assigns the same as error.
    Hawkins, for plaintiff in error.
    McCav, for defendant in error.
   By the Court.

Benning, J.

delivering the opinion.

We think, that the motion of McColgan, the plaintiff, for leave “to open his case, and prove that the paper” “ was an acknowledgment of an indebtedness for the amount of five hundred and twenty dollars,” should have been granted; especially, as McCqlgan resisted the nonsuit, insisting that Courts have no power to grant a nonsuit against the consent of the plaintiff, and it is, at least, a very doubtful question whether he was not right in this position. See 1. Pet. R 469.

It is almost a matter of course, to let in evidence upon a point, to save a non-suit., The practice is commended by every consideration of expediency.

We, think, then, that the Court below, erred in refusing this- motion,

Judgment reversed and case reinstated.  