defendant, and it cannot be proven under a general denial, either in bar or mitigation of recovery. In England the whole common law practice of receiving evidence of payment, and other special defenses under the plea of nil debet or non assumpsit, has been swept away by statute, making the practice there similar to the new system of pleading under the code in the United States. Nothing is admissible under the general denial which does not controvert an allegation in the complaint that the plaintiff is bound to prove to make a prima facie case. The complaint, it is true, ordinarily avers that the instrument sued on has not been paid; still, proof of that averment is not ordinarily required, and therefore it is not put in issue by a general denial, though there are authorities opposed to this view.9 There seems, however, to be a well settled exception to this rule. Where an allegation, not stated as a conclusion of law, is so framed that an issue is presented by the traverse on the fact of the amount due, proof of payment is admissible without an affirmative plea in the nature of a further defense.10 Thus where a person sues to recover a balance due, which he alleges not merely as a conclusion. of law but as a fact, and which he must prove in order to sustain his action, it is well settled that the defendant may show payment. under a general denial, because the amount of the indebtedness, being the only fact alleged by which it may be said to exist, it is traversable; and, being traversed, it is proper to show payment under the issue thus formulated, to refute the fact of its existence.12 Where payment is made in advance of a sale it need not be pleaded in an

4. Harvey v. Denver, etc., R. Co., 44 Colo. 258, 99 Pac. 31, 130 A. S. R. 120; Hubler v. Pullen, 9 Ind. 273, 68 Am. Dec. 620; Field v. New York, 6 N. Y. 179, 57 Am. Dec. 435; McKyring v. Bull, 16 N. Y. 297, 69 Am. Dec. 696 and note; North Pennsylvania R. Co. v. Adams, 54 Pa. St. 94, 93 Am. Dec. 677.

Notes: 42 A. S. R. 317; Ann. Cas. 1912B 487.

5. Hubler v. Pullen, 9 Ind. 273, 68 Am. Dec. 620; Landry v. Baugnon, 17 La. 82, 36 Am. Dec. 606; McKyring v. Bull, 16 N. Y. 297, 69 Am. Dec. 696 and note; Robertson v. Robertson, 37 Ore. 339, 62 Pac. 377, 82 A. S. R. 756 and note.

69 Am. Dec. 696.

Note: Ann. Cas. 1912B 487.

8. Harvey v. Denver, etc., R. Co., 44 Colo. 258, 99 Pac. 31, 130 A. S. R. 120; Hubler v. Pullen, 9 Ind. 273, 68 Am. Dec. 620.

9. Harvey v. Denver, etc., R. Co., 44 Colo. 258, 99 Pac. 31, 130 A. S. R. 120 (stating the rule in California).

Notes: 61 Am. Dec. 60; Ann. Cas. 1912B 487.

10. Robertson v. Robertson, 37 Ore. 339, 62 Pac. 377, 82 A. S. R. 756. Notes: 61 Am. Dec. 61; Ann. Cas. 1912B 487.

11. Jones v. El Reno Mill, etc., Co., 26 Okla. 796, 110 Pac. 1071, Ann. Cas. 1912B 486 and note; Parker v. Mayes,

Notes: 61 Am. Dec. 61; Ann. Cas. 85 S. C. 419, 67 S. E. 559, 137 A. S. 1912B 488.

6. McKyring v. Bull, 16 N. Y. 297, 69 Am. Dec. 696 and note. See also DAMAGES, vol. 8, p. 619.

7. McKyring v. Bull, 16 N. Y. 297,

R. 912.

12. Robertson v. Robertson, 37 Ore. 339, 62 Pac. 377, 82 A. S. R. 756; Parker v. Mayes, 85 S. C. 419, 67 S. E. 559, 137 A. S. R. 912.

action for the price of the goods, for payment in advance would mean that the goods were furnished on an executed consideration in pursuance of an antecedent duty, and that there never was a debt due for them for a single instant. Even where the transaction is a cash sale and the payment is made at the same moment that the goods are furnished payment need not be specially pleaded.13 A defendant cannot avail himself of the defense of payment after the commencement of the suit, unless he also pays the costs as well as the debt.14

128. Proof of Payment under General Issue.-Prior to code practice, and in jurisdictions where the common law system of pleading still prevails, evidence of payment is admissible under the general issue in debt and assumpsit.15 But evidence of a payment pendente lite cannot be given in evidence under the general issue. Such defense must be set up by a plea of puis darrein continuance.16

129. Sufficiency of Plea.-Nothing is pleadable as payment except money, or something agreed to be accepted in lieu thereof.17 Accordingly a plea of payment is bad if it merely alleges that the defendant delivered certain negotiable notes to a third person on account and on behalf of the plaintiffs, without averring that such third person was the agent of the plaintiffs, or that the notes were accepted in full satisfaction and discharge of the debt.18 No subject of set-off can be treated as in any sense payment and cannot be thus pleaded.19 A plea of payment must allege the facts on which it is based and if it does not do so it will be held bad on demurrer.20 So it is heid that a plea of partial payment, which sets forth neither the time, place nor amount of payment, is insufficient. If the defendant undertakes to set forth an itemized statement of payments made to the plaintiff, all payments which he has made should be set forth, and evidence of any items not pleaded is not admissible. Under a

13. Starratt v. Mullen, 148 Mass. 570, 20 N. E. 178, 2 L.R.A. 697. 14. Stevens v. Briggs, 14 Vt. 44, 39 Am. Dec. 209.

15. Crews v. Bleakley, 16 Ill. 21, 61 Am. Dec. 323; McKyring v. Bull, 16 N. Y. 297, 69 Am. Dec. 696 (stating rule); Beals v. See, 10 Pa. St. 56, 49 Am. Dec. 573; Manville v. Gay, 1 Wis. 250, 60 Am. Dec. 379. Notes: 61 Am. Dec. 59; Ann. Cas. 1912B 487.

16. Boyd v. Weeks, 2 Den. 321, 43 Am. Dec. 749.

(N. Y.)

18. Bird v. Caritat, 2 Johns. (N. Y.) 342, 3 Am. Dec. 433.

19. Burton V. Willin, 6 Houst. (Del.) 522, 22 A. S. R. 363. See SETOFF AND COUNTERCLAIM.

20. Hancock v. Yaden, 121 Ind. 366, 23 N. E. 253, 16 A. S. R. 396, 6 L.R.A. 576.

1. Thomas v. Clarkson, 125 Ga. 72, 54 S. E. 77, 6 L.R.A. (N.S.) 658. The plea of payment in this case was as follows: "That he is informed and believes that some credit or credits should be placed upon said notes, and asks that the plaintiff be made to make a full accounting for the same under

17. Burton V. Willin, 6 Houst. (Del.) 522, 22 A. S. R. 363; Hancock v. Yaden, 121 Ind. 366, 23 N. E. 253, oath." 16 A. S. R. 396, 6 L.R.A. 576.

2. Lapham v. Kansas, etc., Oil, etc.,

statutory provision that where a suit is brought in the name of the person having the legal right for the use of another, the beneficiary must be considered as the sole party to the record, a plea of payment in such a case which does not allege a payment to the beneficial plaintiff or a payment to the person holding the legal title, before the person holding the beneficial interest acquired his right, is clearly bad.3

130. Pleading Presumption of Payment.-To avoid objection by demurrer, the plaintiff must allege in his complaint the facts and circumstances on which he relies to rebut the presumption of payment arising from the lapse of time.* If a defendant intends to rely on the lapse of time to defeat an action it is essential that he plead it, unless the facts appear on the face of the complaint without an allegation of rebutting circumstances, when advantage of the presumption may be secured by demurrer. It has been held that the fact which the lapse of time conduces to prove must be pleaded, and not the mere lapse itself, on the ground that the lapse of time is not in itself the bar, and cannot be pleaded as such, but the matter which is presumed from, or, in other words, proved by, the lapse of time, and which matter is the bar, must be set up by the plea." But as according to the view of some authorities a plea of payment rebuts the presumption,8 it would seem necessary to plead not only payment but also suflicient facts to indicate clearly the basis of the plea. But notwithstanding the view just expressed it is questionable whether it is essential that the defendant plead the presumption in order to receive the benefit of it. This is on the ground that the presumption of payment arising from the lapse of time is usually drawn from the plaintiff's own case, and when so drawn it can hardly be regarded as a matter of affirmative defense. If the plaintiff cannot make out a prima facie case without showing also the fact of nonpayment for more than twenty years, the presumption of payment immediately arises, attaches at once to his evidence, and weakens it to such an extent that he cannot recover unless he goes further and undertakes to prove facts tending to repel the presumption. The defendant is not required to repeat the proof that twenty years have elapsed without payment, for that has already appeared; he need only

Co., 87 Kan. 65, 123 Pac. 863, Ann.
Cas. 1913D 813.

3. Mobile, etc., R. Co. v. Jurey, 111 U. S. 584, 4 S. Ct. 566, 28 U. S. (L. ed.) 527.

4. Beekman v. Hamlin, 19 Ore. 383, 24 Pac. 195, 20 A. S. R. 827, 10 L.R.A. 454. As to the presumption of payment arising from lapse of time, see infra, par. 141 et seq.

5. Livingston v. Livingston, 4 Johns. Ch. (N. Y.) 8 Am. Dec. 562.

6. Beekman v. Hamlin, 19 Ore. 383, 24 Pac. 195, 20 A. S. R. 827, 10 L.R.A.

454.

7. Gulick v. Loder, 13 N. J. L. 68, 23 Am. Dec. 711.

8. See infra, par. 164.

call the court's attention thereto, and may then rest upon the presumption or inference of fact arising therefrom until the plaintiff has strengthened the weak point in his own attack. If, however, the plaintiff makes no effort so to do, he fails altogether; but he fails solely for the reason that he has not made out his case-in other words, because his evidence lacks persuasive power.

Proof

131. Burden of Proof.-Of course in a complaint on a promissory note, or other obligation to pay money, there must be an averment that the money has not been paid. This is necessary to make the complaint perfect on its face. But it is a non sequitur to say that because such negative averment is necessary in the complaint therefore it is necessary for the plaintiff to prove it. The general rule is that a party is not called upon to prove his negative averments, although they may be necessary to his pleading.10 The plea of payment tenders an affirmative issue, and the burden of proof must be assumed by the party interposing the plea.11 Where, under the terms of a written obligation, a specific sum of money becomes due and payable at a certain time, the production of such obligation establishes prima facie that the amount therein stipulated to be paid is due, and it is not incumbent on the person holding such obligation in the first instance to show either that demand has been made, or that there has been à failure to comply therewith. Accordingly the proof of a lease establishes prima facie a liability for the full amount and the defendant must establish payment if he is to receive the benefit of it; the plaintiff is not obliged to prove either demand or nonpayment.1 In an action on a promissory note the plaintiff establishes a prima facie case by proving the note, and it is necessary, therefore, to justify a verdict in favor of the defendant upon the plea of payment, that he produce evidence sufficient to overcome the prima facie evidence in favor of the plaintiff arising from the note's being in his possession, and also to outweigh any other evidence in the case tending to show that the note was unpaid.18 In a given.

10. Melone v. Ruffino, 129 Cal. 514, 62 Pac. 93, 79 A. S. R. 127.

11. Simonton v. Winter, 5 Pet. 141, 8 U. S. (L. ed.) 75; Sampson v. Fox, 109 Ala. 662, 19 So. 826, 55 A. S. R. 950 and note; Melone v. Ruffino, 129 Cal. 514, 62 Pac. 93, 79 A. S. R. 127; Indianapolis St. R. Co. v. Haverstick, 35 Ind. App. 281, 74 N. E. 34, 111 A. S. R. 163; Cobleskill First Nat. Bank

v. Hellyer, 53 Kan. 695, 37 Pac. 130, 42 A. S. R. 316; Montgomery v. Leuwer, 94 Minn. 133, 102 N. W. 367, 110 A. S. R. 349: Roberts v. Beatty, 2 Pen. & W. (Pa.) 63, 21 Am. Dec. 410; North Pennsylvania R. Co. v. Adams, 54 Pa. St. 94, 93 Am. Dec. 677.

Note: 110 A. S. R. 351.

12. Montgomery v. Leuwer, 94 Minn. 133, 102 N. W. 367, 110 A. S. R. 349.

13. Perot v. Cooper, 17 Colo. 80, 28 Pac. 391, 31 A. S. R. 258.

case the burden of proof or at least the burden of introducing evidence of nonpayment may be cast upon the plaintiff. Thus if the plaintiff voluntarily offers proof of nonpayment he must introduce sufficient proof to establish a prima facie case of nonpayment.14

132. Degree of Proof.-The general rule is that a plea of payment, being an affirmative defense, must be supported by a preponderance of the evidence, in order to be effective in favor of the party pleading it.15 As the burden of proof of payment is satisfied by a fair preponderance of the evidence, an instruction that it is incumbent on the defendant to establish the fact of payment "by clear and satisfactory evidence" is clearly erroneous, as it negatives the idea that a mere preponderance of evidence is sufficient to warrant the jury in finding that payment was made as claimed, and informs the jury that the fact of payment must be shown by evidence establishing it to a higher degree of certainty than its mere preponderance.16 The fact that the court also instructed the jury correctly without calling their attention to and correcting the erroneous instruction will not cure the error, as it would be impossible to say which instruction the jury followed.17

133. Evidence Admissible under Plea of Payment.-Any entry or transaction between the parties concerning a payment pertaining to the res gestae may properly be proved by either party, but it is not proper under this rule for a bank to prove entries made in its books in the absence of the other party several hours after a transaction in dispute for the purpose of showing a payment made.18 The rule that foreign laws must be pleaded and proved like other facts is not applicable when they consist of mere matters of evidence. Hence, under a general plea of payment, it is competent for the debtor to prove that, according to the laws of another state on which the nature of his obligation depends, a creditor's acceptance of his debtor's promissory note for a pre-existing debt operates as an extinguishment thereof.19 In an action on an original debt, in payment of which a check has been given, the failure of the plaintiff to present such check for payment within a reasonable time, resulting in. loss to the drawer, is available as a defense under the plea of

14. Goff v. Stoughton State Bank, 78 Wis. 106, 47 N. W. 190, 9 L.R.A. 859.

15. Perot v. Cooper, 17 Colo. 80, 28 Pac. 391, 31 A. S. R. 258; Demeules v. Jewell Tea Co., 103 Minn. 150, 114 N. W. 733, 123 A. S. R. 315, 14 L.R.A. (N.S.) 954; Meyer v. Hafemeister, 119 Wis. 539, 97 N. W. 165, 100 A. S. R. 900.

Notes: 42 A. S. R. 317; 55 A. S. R. 960.

16. Meyer v. Hafemeister, 119 Wis. 539, 97 N. W. 165, 100 A. S. R. 900. 17. See INSTRUCTIONS, vol. 14, p. 813.

18. Goff v. Stoughton State Bank, 78 Wis. 106, 47 N. W. 190, 9 L.R.A. 859.

19. Thomson-Houston Electric Co. v. Palmer, 52 Minn. 174, 53 N. W. 1137, 58 A. S. R. 536.