Waite, J.
The first question, presented upon the motion, is, whether the court below erred in refusing to admit in evidence the deed offered by the defendant, in that stage of the trial, in which it was presented.
The rule upon this subject is a familiar one. When, by the pleadings, the burden of proving any matter in issue is thrown upon the plaintiff, he must, in the first instance, introduce all the evidence upon which he relies to establish his claim. He cannot, as said by Lord Ellenborough, go into half his case, and reserve the remainder. Rees v. Smith & al. 2 Stark. Ca. 31. Rex v. Beezley, 4 Car. 4 Pa. 220. (19 E. C. L. 353,) Brayden v. Goulman, 1 Monroe, 115. Rex v. Stimpson, 2 Car. & Pa. 415. (12 E. C. L. 197.) Knapp v. Haskell, 4 Carr & Pa. 590. (19 E. C. L. 539.)
The same rule applies to the defence. After the plaintiff has closed his testimony, the defendant must then bring forward all the evidence upon which he relies, to meet the claim [196]*196on the part of the plaintiff. He cannot introduce a part, and reserve the residue for some future occasion.
After he has rested, neither party can, as a matter of right, introduce any farther testimony which may properly be considered testimony in chief.
What was the situation of the case, when the deed was offered ? The plaintiff claimed title to the demanded premises, by virtue of an execution in his favour, levied upon the property, and introduced his evidence in support of that title.
The defence to this claim was two-fold : first, that no title had been acquired, by the plaintiff, under her execution, because the property had been previously taken by the Reming-tons, by virtue of executions in their favour ; and in the second place, if she had acquired any title under her execution, she had subsequently conveyed it away, by deed.
The defendant was at liberty to place his defence upon either or both these grounds, at his pleasure. He chose, however, to produce evidence only in relation to the title acquired by the Remingtons, under whom he claimed a right to hold the possession.
The plaintiff then introduced evidence to impeach the title acquired by the Remingtons, and to show that it was fraudulent and void, as against the creditors of Granger, the former owner. The defendant then, after introducing evidence in support of the Remington title, attempted, for the first time, to resort to the other ground of defence, and show that the plaintiff had parted with her title to the demanded premises. This was dearly testimony in chief, and came too late. The decision of the court below was in conformity with the rule.
But this rule is not, in all cases, an inflexible one. There is, and of necessity must be, a discretionary power, vested in the court before which a trial is had, to relax the operation of the rule, when great injustice will be done, by a strict adherence to it. If a party, by mere mistake or inadvertence, omit to introduce a piece of testimony, constituting an essential link in his chain of evidence, and does not discover the mistake until after he has closed his testimony, the court, in its discretion, will, rather than that his cause should be sacrificed, permit him to supply the omission; taking care, how[197]*197ever, to see that the adverse party is not prejudiced, by the relaxation of the rule.
This discretionary power, however, is to be exercised with great caution. While tbe rule may be departed from, for the sake of preventing great and manifest injustice, it ought not to be so frequently disregarded as to render it a rule in name, and not in reality.
We discover nothing in the present case, calling for the exercise of this discretionary power. It is not stated, that the omission to offer the deed, at an earlier period, was occasioned by any mistake or inadvertence of the defendant or his counsel.
The defendant did not claim title under that deed, but under the executions in favour of the Remingtons ; and the effect of setting up that deed, might only have been to turn the plaintiff, or her grantee, round, to bring another suit, for the purpose of trying the precise question involved in the present case, and that is, whether the plaintiff or the Remingtons had acquired the better title under their executions.
2. The next enquiry is, as to the effect upon the judgments, by the omission to apply the endorsement upon the note, in reduction of the amount. The jury were told, that if this were done, with a fraudulent design on the part of the plaintiff, the judgments would be void. The jury having returned a verdict in her favour, the charge of fraud must, therefore, be considered as negatived.
The case then must stand upon the ground of a mere mistake in computing the amount due upon the note. If by mistake, that amount is made too large, will it vitiate the judgment, and render the whole void ? We think not. Relief, in such case, must be afforded in some other form, than by setting aside the whole judgment, and all proceedings under the execution issuing upon that judgment.
In the present case, the defendant claims title from the Remingtons. The plaintiff’s title was acquired subsequently to theirs , and the jury, by returning a verdict in her favour, must have proceeded upon the ground claimed by her on the trial, that the judgments in favour of the Remingtons were fraudulent and void as to the creditors of Grander.
Under these ciscumstances, the defendant can be considered as standing upon no higher ground than that of a bona [198]*198fide creditor of Granger, levying his execution upon his property, subsequent to the proceedings under that of the plaintiff Now, if the plaintiff has actually, under colour of law, taken more land than sufficient to satisfy the whole debt due to her, she ought not in equity to retain the surplus, as against the creditors of Granger, especially if he be insolvent, and have no other means of satisfying their demands. In
In such case, we are inclined to think the defendant’s ap- propriate remedy is by an application to a court of chancery. That court possesses more extensive powers than a court of law, and can so direct its decree as to do justice to all parties in interest. Had
the land set off upon the first execution, been suffi- cient to satisfy the whole debt actually due to the plaintiff, we are not prepared to say, that the subsequent judgment and execution would not have been inoperative, as against the title acquired by the Remingtons. But
the difficulty here is, that after applying the first tract of land upon the plaintiff’s first judgment, there was still a bal- ance justly due to her; and in relation to the subsequent pro- ceedings, a court of law has no power to separate the good from the bad. It must either hold the subsequent judgment and execution valid, or the whole void. It
is however insisted, that as the last execution was levied upon two pieces of land, and the one first described in the officer’s endorsement, according to the appraisal of the free- holders, is sufficient to satisfy the balance justly due to the plaintiff, she acquired, as against the Remingtons, no legal title to the demanded premises, which is the tract secondly described in the endorsement. There
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Waite, J.
The first question, presented upon the motion, is, whether the court below erred in refusing to admit in evidence the deed offered by the defendant, in that stage of the trial, in which it was presented.
The rule upon this subject is a familiar one. When, by the pleadings, the burden of proving any matter in issue is thrown upon the plaintiff, he must, in the first instance, introduce all the evidence upon which he relies to establish his claim. He cannot, as said by Lord Ellenborough, go into half his case, and reserve the remainder. Rees v. Smith & al. 2 Stark. Ca. 31. Rex v. Beezley, 4 Car. 4 Pa. 220. (19 E. C. L. 353,) Brayden v. Goulman, 1 Monroe, 115. Rex v. Stimpson, 2 Car. & Pa. 415. (12 E. C. L. 197.) Knapp v. Haskell, 4 Carr & Pa. 590. (19 E. C. L. 539.)
The same rule applies to the defence. After the plaintiff has closed his testimony, the defendant must then bring forward all the evidence upon which he relies, to meet the claim [196]*196on the part of the plaintiff. He cannot introduce a part, and reserve the residue for some future occasion.
After he has rested, neither party can, as a matter of right, introduce any farther testimony which may properly be considered testimony in chief.
What was the situation of the case, when the deed was offered ? The plaintiff claimed title to the demanded premises, by virtue of an execution in his favour, levied upon the property, and introduced his evidence in support of that title.
The defence to this claim was two-fold : first, that no title had been acquired, by the plaintiff, under her execution, because the property had been previously taken by the Reming-tons, by virtue of executions in their favour ; and in the second place, if she had acquired any title under her execution, she had subsequently conveyed it away, by deed.
The defendant was at liberty to place his defence upon either or both these grounds, at his pleasure. He chose, however, to produce evidence only in relation to the title acquired by the Remingtons, under whom he claimed a right to hold the possession.
The plaintiff then introduced evidence to impeach the title acquired by the Remingtons, and to show that it was fraudulent and void, as against the creditors of Granger, the former owner. The defendant then, after introducing evidence in support of the Remington title, attempted, for the first time, to resort to the other ground of defence, and show that the plaintiff had parted with her title to the demanded premises. This was dearly testimony in chief, and came too late. The decision of the court below was in conformity with the rule.
But this rule is not, in all cases, an inflexible one. There is, and of necessity must be, a discretionary power, vested in the court before which a trial is had, to relax the operation of the rule, when great injustice will be done, by a strict adherence to it. If a party, by mere mistake or inadvertence, omit to introduce a piece of testimony, constituting an essential link in his chain of evidence, and does not discover the mistake until after he has closed his testimony, the court, in its discretion, will, rather than that his cause should be sacrificed, permit him to supply the omission; taking care, how[197]*197ever, to see that the adverse party is not prejudiced, by the relaxation of the rule.
This discretionary power, however, is to be exercised with great caution. While tbe rule may be departed from, for the sake of preventing great and manifest injustice, it ought not to be so frequently disregarded as to render it a rule in name, and not in reality.
We discover nothing in the present case, calling for the exercise of this discretionary power. It is not stated, that the omission to offer the deed, at an earlier period, was occasioned by any mistake or inadvertence of the defendant or his counsel.
The defendant did not claim title under that deed, but under the executions in favour of the Remingtons ; and the effect of setting up that deed, might only have been to turn the plaintiff, or her grantee, round, to bring another suit, for the purpose of trying the precise question involved in the present case, and that is, whether the plaintiff or the Remingtons had acquired the better title under their executions.
2. The next enquiry is, as to the effect upon the judgments, by the omission to apply the endorsement upon the note, in reduction of the amount. The jury were told, that if this were done, with a fraudulent design on the part of the plaintiff, the judgments would be void. The jury having returned a verdict in her favour, the charge of fraud must, therefore, be considered as negatived.
The case then must stand upon the ground of a mere mistake in computing the amount due upon the note. If by mistake, that amount is made too large, will it vitiate the judgment, and render the whole void ? We think not. Relief, in such case, must be afforded in some other form, than by setting aside the whole judgment, and all proceedings under the execution issuing upon that judgment.
In the present case, the defendant claims title from the Remingtons. The plaintiff’s title was acquired subsequently to theirs , and the jury, by returning a verdict in her favour, must have proceeded upon the ground claimed by her on the trial, that the judgments in favour of the Remingtons were fraudulent and void as to the creditors of Grander.
Under these ciscumstances, the defendant can be considered as standing upon no higher ground than that of a bona [198]*198fide creditor of Granger, levying his execution upon his property, subsequent to the proceedings under that of the plaintiff Now, if the plaintiff has actually, under colour of law, taken more land than sufficient to satisfy the whole debt due to her, she ought not in equity to retain the surplus, as against the creditors of Granger, especially if he be insolvent, and have no other means of satisfying their demands. In
In such case, we are inclined to think the defendant’s ap- propriate remedy is by an application to a court of chancery. That court possesses more extensive powers than a court of law, and can so direct its decree as to do justice to all parties in interest. Had
the land set off upon the first execution, been suffi- cient to satisfy the whole debt actually due to the plaintiff, we are not prepared to say, that the subsequent judgment and execution would not have been inoperative, as against the title acquired by the Remingtons. But
the difficulty here is, that after applying the first tract of land upon the plaintiff’s first judgment, there was still a bal- ance justly due to her; and in relation to the subsequent pro- ceedings, a court of law has no power to separate the good from the bad. It must either hold the subsequent judgment and execution valid, or the whole void. It
is however insisted, that as the last execution was levied upon two pieces of land, and the one first described in the officer’s endorsement, according to the appraisal of the free- holders, is sufficient to satisfy the balance justly due to the plaintiff, she acquired, as against the Remingtons, no legal title to the demanded premises, which is the tract secondly described in the endorsement. There
would be much force in this argument, did it appear from the endorsement of the officer, that he levied, in the first place, upon one of the pieces, and after having that ap- praised, and set off upon the execution, he levied upon the other piece, and set. it off in like manner. In such case, if the plaintiff, at the time of the levy of the execution upon the last piece, had been fully paid, and her just debt satisfied, the defendant might well say, your title to the last tract of land shall not prevail against mine. The
The difficulty, however, is, that the officer levied the last execution upon the two pieces of land, at one and the same same [199]*199time, and caused them both together to be set off upon the execution. A court of law can no more say which of the two pieces the plaintiff, under such circumstances, shall retain, and which relinquish, than it could, were the two pieces but one entire tract. The mere circumstance that one of the pieces is first described in the officer’s return, does not make any difference, or vary the legal effect of the execution.
3. The remaining inquiry relates to the quantity of land contained in the demanded premises. They were appraised at 25 dollars per acre, and were set off to the plaintiff upon her execution, as containing just 26 acres. It is now claimed, by the defendant, that the tract contains 26 acres and 18 rods, and consequently, she has, in fact, taken 18 rods more than she is entitled to.
On the trial, it was claimed, by the plaintiff, that the excess was so small as to fall within the maxim, “ de minimis non curat lex;" and the validity of that claim was recognized, by the court below.
We do not, however, deem it material to go into an enquiry, whether the claim can be vindicated, upon that ground ; because we are satisfied,that, for other reasons, a new trial for this cause should not be granted.
It is not claimed, that either the plaintiff, or the officer, committed any intentional wrong, in setting off the tract, as containing just 26 acres. There is no error apparent upon the face of the officer’s return. The case, therefore, must be considered as standing upon the mere ground of a mistake in fact, in relation to the quantity of land contained in the described tract.
The question, therefore, in this aspect, becomes very similar, in its effect, to the one last considered ; and the appropriate remedy, if any, is also in a court of chancery. Were the magnitude of the error sufficient to justify the interference of that court, it might, by a proper decree, direct the plaintiff to relinquish as much of the land as would equal in value the amount of the excess taken.
A new trial must therefore be denied.
In this opinion the other Judges concurred.
New trial not to be granted.