
    [Lancaster,
    May 30, 1825.]
    SCHLATTER and others, Assignees of OPPENHEIMER and others, against ETTER and another.
    IN ERROR,
    Under the statement law, the plea of payment, with leave to give the special matters in evidence, and notice given and accepted, and evidence without objection at the trial, may be considered as a counter statement.
    The plea of payment with leave, to a statement, does not admit any fact not mentioned in the statement: if essential, the plaintiff must prove it.
    Writ of error to the District Court for the county of Dauphin. William Schlatter, William Gill, and William Worrell, assignees of Oppenheimer, Arnold, and Elias, plaintiffs in error, and plaintiffs below, brought this suit against George Etter, and Joshua Elder, late of the firm of Etter and Elder, and filed the following statement of their demand.
    
      i(Dauphin count3r, ss.
    “The plaintiffs sue the defendants, to recover a debt due by them on an agreement in writing, of which the following is a copy, viz.
    
      Philadelphia, April 18th, 1816.
    “ We promise to pay William Schlatter, William Gill, and William Worrell, assignees of Oppenheimer, Arnold, and Elias, the difference of exchange between the notes of the bank of Swatara, and those of Philadelphia, on the amount of three notes to them of this date, at the time they severally become due; that is to say, on the first day of June next, one for eight hundred and seventy-four dollars, twenty-six cents; on the first day of August next, one for eight hundred and eighty-two dollars, ninety-three cents; and on the first day of October, one for eight hundred and ninet3--one dollars, sixty cents; but it is understood that the difference of exchange shall not exceed ten per cent.
    
    
      June 1st, on 874.26.
    
      August 1st, on SS2.93.
    
      October 1st, on 891.60. Etter and Elder.”
    
    And the plaintiffs say, that the discount and difference in exchange on the above said three notes amounted to two hundred and eleven dollars, eighty-four cents; being eight percent, thereon. That on the 27th of April, 1819, the sum of thirty-five dollars was paid by the hands of Elisha Green, Esq. on account of the said discount, which then left of the said exchange or discount one hundred and seventy-six dollars, eighty-four cents, unpaid. And the plaintiffs say, that they believe there is justly due to them on, and by virtue of the aforesaid premises, one hundred and seventy-six dollars, and eighty-four cents, by the defendants, together with interest thereon, from the first day of October, 1816, and all which, with costs, ought to be recovered in this suit.
    
      The defendants pleaded payment, with leave to give the special matter in.evidence, replication, non solverunt and issue.
    The plaintiffs produced the notes on the trial, under notice from the defendants, and under this plea, and special notice, the defendants gave evidence, by letters from the plaintiffs, and by the cashier of the Swatara bank, Mr. Nelson, that these notes were paid to the plaintiff’s agent, the said cashier, at Harrisburg, in Philadelphia and country notes, none being of the Swatara bank; and were received by the cashier, under the instructions of the plaintiffs, in full satisfaction of the notes, and paid over to the plaintiffs. No evidence was given by the plaintiffs of the nature of the notes received in payment, or of the difference of exchange between them and the bank notes of the city of Philadelphia, as they concluded that the plea of payment was an admission by the defendants of their cause of action.
    The court below charged the jury as follows:
    “The plea of payment, with leave to give the special matters in evidence, is not as contended for, an admission by the defendants that the plaintiffs have a good cause of action against them; it is not to be considered by you as acknowledging the discount to be as set out in their statement, and superseding the necessity of proving, if there was any, the difference between the bills paid, and Philadelphia paper. It is the duty of the plaintiffs, to enable them to recover, to inform you what, if any, was the true discount on the bills paid and received, combining the facts given in evidence, the testimony of Mr. Nelson, with the letters of the plaintiffs. If you are of opinion, that the notes of the defendants were paid, when due, to the plaintiffs’ agent, by him received under the plaintiffs’ instructions, and paid by the defendants in full of the notes, or if you are of opinion, that there was no difference in exchange between the bills paid and Philadelphia paper, especially if Mr. Worrell accepted them at par, the defendants will be entitled to your verdict.
    “But, if there is evidence sufficient io satisfy you, that there was any, and what discount, between the bills received, and Philadelphia paper, and that the bills received were not paid and received in satisfaction of the notes, and at par, you should find accordingly for the plai?itiffs.” To this opinion of the court the plaintiffs excepted.
    
      Elder, for the plaintiffs.
    
      Douglas, contra.
   The opinion of the court was delivered by

Duncan, J.

This was an action of debt, under the statement law, and statement in pursuance of it. It is not a declaration at common law. The plea of payment with leave to give special matters in evidence, and notice given and accepted; and evidence received without objection at the trial, I would consider as a counter statement.

Etter and Elder had given three notes to Oppenheimer and others, payable on different days, and an arrangement took place, that the difference of exchange between the notes of the bank of Swatara and the city banks should be allowed by Etter and Elder. If this had been a declaration instead of a statement, the plaintiffs must have set out that these notes had been paid in Swatara paper, — a paper that the bank would accept in deposit; and that when these payments were so made, the notes were at a certain discount, and the agreement was not, that the promisors should pay the difference of exchange between Swatara notes and par paper, unless they paid the debt in that inferior paper. There was no averment by the plaintiffs, that they did pay in Swatara bank paper, nor any proof of this. On the contrary, the defendants proved, that the notes had been sent to the cashier of the Swatara bank for collection, without any information of the arrangement respecting exchange, who received payment not in Swatara bank notes, but as good as Swatara, and some better. The money received by the cashier was some in Philadelphia and some in country money. The money was not mixed with the bank money, but remitted in the kind received. It was incumbent on the plaintiffs, as it was not Swatara money, but all other money, — some part par money, — to have proved the kind of country money, and the difference of exchange between that and city money, and the amount of city money. The payment was received by their agent, and transmitted by the agent. If not received in full satisfaction of the notes, which were delivered up by the agent, to have made out a case correspondent with the collateral engagement to pay the exchange, it lay on the plaintiff to show the discount, and therefore to show what the money was. Before any jury could ascertain the compensation, on account of paper of a description inferior to par, the plaintiffs should have proved what the paper was. The plea does admit what is not contained in the statement. It is not averred in that, that these notes were paid in country paper, and, if not paid in country paper, the collateral engagement had nothing to which it could be applied; and if paid in country paper partly, and partly in city paper, it lay on the plaintiffs to prove the amount and kind of each, and not on the defendants. The matter of fact was fairly left to the jury to decide, whether the plaintiffs received the money, such as it was, not being Swatara money, nor wholly country money, in satisfaction and as par money, and that if. they did not, then to ascertain the discount between the bills received and Philadelphia paper. If there was any difficulty in deciding this, it arose from the conduct of the plaintiffs, in not showing what kind of money they did receive and the difference of exchange. There was some evidence that the money had been had at par: this is fortified by the consideration that part was par, and they kept no accounts to distinguish the par- money from the country money; and having given no evidence of that, it was impossible for the jury to say, that this collateral engagement should affect the payment and satisfaction of the notes, or create any obligation to pay the difference of exchange, when the plaintiffs did not show any extent of injury or damage sustained by the difference of exchange.

Judgment affirmed.  