Baldwin, J. delivered the opinion of the Court
Cope, J. and Field, C. J. concurring.
We think the Court erred in excluding the rebutting testimony of the defendants ; and we here remark, that as the admission of evidence, even after the party has had an opportunity to offer it, and has failed *200is a matter of discretion, it is better for the Court, whenever the ends of justice require it, to suffer the testimony to go in. But in this case the plaintiff offered the note sued on in evidence, and rested. The defendant, not disputing the execution of the note, offered in evidence some receipts for the purpose of proving payment. To rebut this, the plaintiff offered proof tending to show that these payments applied to an open account against defendants. The defendants then proposed to show that there was no such account made or existing. We do not see how the defendants could anticipate this proof of the plaintiff in regard to the account, and to deny them an opportunity of rebutting it, might be equivalent to a denial of a right to prove their defense. The burden of the proof was really on the defendants to prove payment under the issue, and the defendants were entitled to close the proofs, at least to rebut any new matter set up by the plaintiff. (See 4 Hill, 204; Cowen’s Treat. 992 ; Cowen & Hill’s notes to Phil. Ev. 711, 718 ; and the cases cited in Shepard v. Potter, 4 Hill, supra.)
We see no substantial error in the instructions. Judgment reversed, and cause remanded for a new trial.