Gage v. Wilburn

4 S.C.L. 485

• Court: Supreme Court of South Carolina
• Decided: May 15, 1811
• Status: Published

Opinion

Brevard, J.,

delivered the opinion of the court in favor of the application. The evidence did not maintain the issue joined be. tween the parties. There were credits in the account acknow. ledged, which were sufficient to extinguish the charge for building a bridge. The acknowledgment related to the whole account stated, and not to a part. The account ought not to have been garbled, and a particular charge selected. The garnishee had no notice by the suggestion, that he would be required to defend himself against the payment of a balance due on a general account. If he had been apprised of the nature of the proof which was offered, the acknowledgment of the correctness of a general account, he might have been prepared with evidence to shew, that the balance appearing due by him, on the statement acknowledged by him to be correct, liad been afterwards paid. But for any thing that appears to the contrary, he was only prepared to show that the particular item selected from the account, and stated as that on which he was to be charged, had been paid, or discounted on a partial settlement of accounts. The issue ought to have been as broad as the evidence necessary to prove it. It should have been on the balance stated to be due on the general account, and not on any particular item of the account, although covered by the balance due.

New trial granted.