New-York Dry Dock Co. v. M'Intosh

No doubt the general issue was'waived by the plea puis. But although* the plea of payment in assumpsit *291admits some damages, it does not admit the whole amount laid ip the declaration, any more than a default or demurrer. If the defendant had given no evidence under his plea, the plaintiffs would have been entitled to a verdict for six cents; but they could not have got more without proving that they had a larger demand. When the defendant proved that he had paid $535, it was for the plaintiffs to show that they had a further claim before they could have a verdict. It would have been so if the defendant had proved the payment of a single dollar.

The defendant has pleaded payment in the usual form. He • was only bound to prove the substance of the issue. That does not depend on the form of words.' The substance of the issue was, that the plaintiffs had been paid their debt or demand. On proving the payment and acceptance of any sum of money, the burden was thrown on the plaintiffs of showing that their whole debt was not satisfied.

New trial denied.(a)