delivered tbe opinion of tbe court.
This was an action of debt, tried by jury upon issues of fact, one of wbicb was on tbe plea of payment. After tbe evidence, on tbe part of tbe plaintiff below, bad been concluded, tbe defendant filed bis petition, verified by affidavit, alleging a payment of tbe sum of $112 — a loss of the receipt given to him by tbe proper officer of tbe Bank for tbe same — that he bad not known of tbe loss until that day, and was not sure of it until by diligent search among his papers, where he supposed it was, up to a few minutes before the application, he bad been unable to find it. And that no delay would be the result of an order of court to allow him to read from a book of the Bank, then on the clerk’s table, and just before used by witnesses for the Bank, to refresh their memory, an entry therein which would show that the Bank had given him credit for the payment of $112, which he -would have proved by the alleged receipt, but for its having been lost or mislaid as set up.
The court made tbe order against the objection of the Bank — as for the application being out of time — to which a bill of exceptions was taken, but as the Bank has not complained, that question is not presented.
After the defendant had thus proven the payment of $112, which, it appears by his bill of exceptions, was found and allowed for him, in the verdict of tbe jury, he offered- to read, from the same book of accounts, further entries to prove additional payments by means of an apparent balance in his favor of $874 99, standing on the face of said account, in connection with oral evidence which be offered to produce, that before the commencement of this suit, be bad expressly requested and directed the proper officer of the Bank to apply and appropriate as much as was necessary of said apparent balance to extinguish the note sued on, and if tbe same was insufficient, to apply it nevertheless upon this debt. But tbe court refused to permit him to do so, and the defendant filed his bill of exceptions.
At the same time that tbe defendant made this application, tbe plaintiff on her part offered to show, from the books of the Bank, other than said account book, and to prove that said apparent balance, long before the defendant had given his alleged directions for its appropriation, bad been actually appropriated and applied by tbe Bank, to wit: on tbe lltb August, 1846, and tbe 13tb September, 1848, towards tbe payment of a note of said defendant, with Pike and Walters as bis securities therein, payable to tbe Bank, dated 5th of December, 1843, on which suit was instituted in that court in April, 1853, and all tbe defendants discharged, at tbe then present term, upon their plea of tbe statute of limitations. But tbe court refused to permit her to do so, and she filed her bill of exceptions.
It appears, from tbe.record, that no further application was made by tbe defendant, for theproduction of tbe books and papers of tbe Bank, other than that above mentioned in reference to tbe payment of $112.
Under this state of facts, it is manifest, that it would have been error in tbe court to have allowed the defendant's application, without tbe consent of tbe plaintiff, because tbe court could not compel the plaintiff to produce evidence against herself, otherwise than through a bill of discovery, or on a proceeding in its nature under tbe statute, -which tbe defendant adopted as to the credit of $112, but which did not extend to tbe other and additional payments, which besought to establish by the Bank’s book, in connex-ion with the other evidence which he offered to produce. If the plaintiff could be held to have waived the objection, that the defendant had not extended this proceeding for the production of books, to the supposed additional payments, by reason of her having offered, on her part, to produce rebutting testimony to what was produced by the defendant, she could only be so held upon the condition that her rebutting testimony was also allowed. And to the refusal of the court either to allow the latter, or to any refusal of the court to allow the whole as one entire proposition, the defendant does not except at all; but only to so much of the ruling of the court as disallowed Ms proposition to produce the testimony on Ms behalf, which he offered.
To have allowed the defendant, under the facts of this case, what he proposed, would have been as unreasonable as to have allowed bim to propound two interrogatories to the plaintiff, or to have enquired as to two distinct facts, when be bad, by a proper proceeding, applied for, and been granted leave of court to enquire as to one only.
We think it clear that the court did not commit any error against the defendant; and, therefore,, the judgment will be affirmed, with costs.
Absent, Mr. Justice Walker.