majority">Wheeler, J.

Of tlie several errors assigned, those which it is deemed material to notice are—

1st. The submission to tlie jury of tlie issue upon tlie plea of a former judgment, and tlie admission of parol evidence to identify the judgment and the note upon which it was rendered;

2d. Permit ling the credit upon the note to be read to the jury; and,

3d. Tlie refusal of instructions asked by the plaintiff.

Tlie first objection here presented is answered by the opinion of this court in the cases of Foster v. Wells and Weathered v. Mays, decided at tlie present term.

Although tlie credit upon tlie note had not been read to tlie jury before the evidence was closed, yet it was in evidence that there' was a credit upon tlie note. This fact of itself would seem to have warranted tlie court in permitting it to be read and commented on in the course of the argument. Tlie fact of a credit/was in evidence, and it was competent for the.plaintiff at tlie time to have urged his objections to its admissibility, or to have introduced explanatory evidence, if he deemed it to require or admit of explanation, or to have obviated its legal effect by any evidence in his possession. Hot having doin' so, but having been silent when tlie fact was proved, Ills objection to its admissibility came too late.

But if the credit in question is. not to be considered as having been properly in proof'before tlie parties had closed their evidence, still it'was within (.lie discretion of the court, if the justice of the case seemed to require it, and its admission would operate no surprise or prejudice to tlie opposite party, to permit the evidence to be given, even after the argument had commenced; the oilier party being permitted to introduce any explanatory or rebutting evidence which lie might oiler.

The admission of the evidence could have operated no surprise to the plaintiff, for his attention had been drawn to it, during the examination of tlie witnesses; nor could lie have been in anywise prejudiced by the omission to read tlie evidence to the jury at an earlier slage of the trial. .

The correctness of the ruling of the court in giving and refusing instructions is liable to more serious question.

That a payment upon tlie note, in the absence of proof of an intention to make a different application of it, must be first applied to the extinguishment of the interest is an elementary principle. And it is perfectly clear'that if tlie amount of the note for the principal sum, exclusive of interest, was not reduced to $100, it was not within the jurisdiction of the justice; and his judgment was consequently void, and could neither be pleaded in bar nor admitted in evidence.

The note was for the payment of $100.10. It had been due, and lienee drawing interest, from the 1st day of January, 1843, until the 12th day of August, 1S47, when tlie credit was entered. And there is no pretense that it had been reduced by any other credit or payment tiran that of twenty-live cents, indorsed upoii it. That did not extinguish the interest, and of course left tlie principal cutiré, a sum not within the jurisdiction of tlie justice.

The court therefore erred in the instruction given, in so far as that instruction left it to the jury to tind that there was a'credit upon the note which reduced it within the jurisdiction of the justice. It should not have been left to them to draw a conclusion which there was no evidence conducing in any degree to support.

The court also erred in refusing to instruct the jury that (lie credit upon the note must be applied first to tlie extinguishment of the interest. That instruction was relevant and pertinent, and ought to have been given as asked. *231The" last proposition asked as an instruction — that is, that if the amount of principal and interest exceeded $100, the justice had not jurisdiction — hvas manifestly incorrect and rightly refused. The justice liad jurisdiction if the amount did not exceed $100. (Acts of 184G, p. 302, sec. 13.)

Note 97.—McGreal v. Wilson, 9 T., 426; Lee v. Hamilton, 12 T., 418; Earle v. Thomas, 14 T., 583; Andrews v. Smitherick, 20 T., 111; Dodd v. Arnold, 28 T., 97; Patton v. Rucker, 29 T., 402.

‘ Tlie proposition “that the defendants cannot contradict the record introduced by parol testimony,” also asked as instruction, though true as an abstract proposition, involved an assumption of fact wholly unsupported by the record, and was rightfully refused, there having been no evidence offered by the defendants to contradict the record of the judgment by the justice. But in consequence of tlie errors before indicated, the judgment must be reversed and the cause remanded for further proceedings.

Judgment reversed.

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