April 13, 1921. The opinion of the Court was delivered by This is an action on a note. Defense, failure of consideration. Cause tried before JUDGE SEASE and a jury at the April term of Court, 1920, for Greenwood County, and resulted in a verdict in favor of plaintiff for amount sued for.
Exceptions, six in number, allege error on the part of his Honor.
Exception 1 alleges on the part of his Honor in not allowing defendant to open and reply. This exception is overruled. The defendant was not prejudiced by such ruling, and at the time of the ruling no suggestion or intimation was given to the Court that the defendant would be prejudiced by such ruling, and by standing by and permitting the plaintiff to offer testimony without claiming the right at the proper time the defendant waived it, but later his Honor gave the defendant the right to reply in argument if they desired it. This certainly cured the error, if any.
Exceptions 2, 3, 4 and 5 allege error in his Honor's charge. Taking the charge as a whole, the defendants were not prejudiced, and the charge as a whole was correct, applicable to the facts testified to, and the law of the case.
Exception 6 alleges error in allowing Ellis to testify as to certain facts. This was not prejudicial; the evidence was competent to show the situation at that time.
All exceptions are overruled, and judgment affirmed.
MR. CHIEF JUSTICE GARY and MR. JUSTICE FRASER, concur.