OPINIÓN of the Court, by
Ch. J. Edwards.—in this case, the first assignment relates to propriety of the refusal of the inferior court to admit the plea. The cause had been at issue for twelve months ; and at the court at which the suit was tried the defendant moved the court for leave to file an additional plea, which wa$ overruled by the court, and their opinion excepted to.
The defendant could not, as a matter of right, be per» mitted to file his additional plea ; such an application is an appeal to the sound discretion of the court, who should not permit it to be done, unless it appeared that the defendant had not, previous thereto, had an opportunity of pleading the same matter, or unless it appeared necessary to the ends of justice, and not calculated to produce embarrassment and delay (a). No proper Krounc]s being: shewn in this case to render it the duty 01 the court to admit the plea, their decision m this respect appears to be correct. But it was correct on another very palpable ground. The suit was founded on an individual transaction ; the setoff, proposed to be plead, was a debt due to a firm, of which the defendant alleged he was a member, which ought not to be aR lowed.
The second assignment of error is, that the verdict was contrary to evidence. This cannot be supported, because it does not appear that the whole evidence is spread upon the record. As it appears, it is only a call on this court to decide the credibility of the witnesses, which is so exclusively the province of a jury that an appellate court ought not to interfere with the subject.
Judgment affirmed.
Accord. Hulet vs. Hall, April 24, 1809-Violett vs. Dale, ante 145.