#### Henry Hagood *v.*Robert Cathcart.

The general role as to the *reply*is, if the defendant adduce any evidence, the plaintiff’s counsel is entitled as of right to the reply. In this case the defendant’s counsel *called hack*the *plaintiff’s witness,*after, the plaintiff had closed his case, to prove his defence. Held that the plaintiff was entitled to the reply.

*Before EVANS, J., at Fairfield, Spring Term,*1839.

The report of this case by his honor the presiding judge, is as follows: “There had been large dealings between the parties, amounting to upwards of $15000. Among the first dealings, the defendant received from Lott & Co., of Columbia, $364 75, of the plaintiff’s money. The action was to recover this sum. In 1835 there was a settlement, but this sum was not brought into the settlement. In 1838, the plaintiff demanded the money. A review of their accounts was made by Mr. Woodward and Mr. Hall, who detected and corrected some errors; but this demand was not brought into the settlement. When it was presented, Cathcart said he thought it was settled otherwise, and if he could not show it paid, he would pay it. Mr. Elder said he made the statement by which the parties settled in 1835. Whilst the papers were preparing, he heard a conversation about money received from Lott. Pie understood a verbal order had been given by Hagood to Cathcart, to receive $600 from Lott, of which Cathcart said he had received only. 340 or 350 dollars. This gentleman admitted that before the reference he was wholly unable to account for how this money was paid, nor did he pretend to know how it had been settled. Pie said that as to so much of the account as related to the store, regular charges were made. That Cathcart had several times loaned money and paid debts for Hagood; of these transactions, memorandums were taken and put in a private drawer, and when the money was returned, the vouchers were given up. *263The jury found for the plaintiff, and I thought the weight of the evidence was in favor of the verdict.

On the third ground, it will be necessary to state the facts, in order to understand it correctly. On opening the case, the plaintiff called a. Mr. Elder to prove the signature of the defendant to the receipt. He then offered other evidence of what occurred at the time Woodward and Hall attempted to settle the accounts, and closed. The defendant then called back Elder, and examined him to prove his defence, that the matter had been settled by the parties. To this evidence, the plaintiff replied by evidence that at the arbitration, neither Cathcart nor Elder, his chief clerk, pretended to know any thing in relation to this money. Cathcart said he could show it had been paid, by receipts, and if he could not, he would pay it. Under these circumstances, I thought the plaintiff entitled to the reply.”

The defendant appealed and now moved for a new trial on the following grounds:

1. Because the lapse of time between the receipt of the money sued for, and the bringing of the action, and the proof of the many settlements which had taken place between plaintiff and defendant during said period, raised such a strong legal presumption of the payment of it, that the jury was bound to find a verdict for defendant, unless the plaintiff had expressly rebutted the presumption: and that the court should so have charged the jury.

2. Because the verdict of the jury was clearly contrary to the evidence of the case; as it was proved that the plaintiff and defendant had a final settlement of their accounts on the 24th of August, 1835, at which settlement the present demand was spoken of by the plaintiff) and not claimed as a credit against the demand of the defendant, or any claim set up for the payment of it, for upwards of eighteen months after said settlement.

3. Because the defendant introduced no witnesses on his part, but only examined the witnesses introduced by the plaintiff,'he was legally entitled to the reply in argument, and the court erred in refusing defendant said right.

Cukia, per Evans, J.

The general rule, as stated in Chitty’s *264Gen. Prac. 3 vol. p. 909, is, if the defendant’s counsel adduce any evidence, the plaintiff’s counsel is entitled as of right to the reply; and the case cited from 1 Moody & Malkin, 86 and 22, Eng. Com. L. Rep. 259, fully sustains the proposition. In this case the defendant’s counsel called back the witness after the plaintiff had closed his case, to prove his defence, viz. that Cathcart had before accounted for the money he received from Lott, and that it had already been settled by the parties. This was surely adducing evidence to discharge him, the defendant, from the plaintiff’s demand. All the other grounds relate to the facts of the case, which the jury have no doubt correctly decided.

*Clarke*& *M’Dowell,*for the motion.

*Woodward,*contra.

The motion is refused.

Richardson, O’Neall, Butler and Earle, Justices, concurred.