I dissent. The evidence having been let in, there was no need for the plaintiff to apply for leave to reply, which he might well have done and obtained, had it been shut out. All the evidence in the record must be considered upon this appeal, as the court below must have considered it in deciding the case. The court cannot admit evidence and then disregard it in its decision, thus depriving the party of all notice that his evidence would be stricken from the record.
Judgment affirmed, with costs.