
    Henderson, &c. v. Southall, &c.
    [December, 1790.]
    Pleading: and Practice — Plea of Payment — Effect -The plea of payment Is responsive to the negation of non-payment, In the declaration, and amounts to the general issue in this country.
    This was an appeal from the district court of Charlottesville; and the only question was, Whether the plea of payment should conclude to the country?
    Monroe, for the appellant.
    The plea of payment ought to conclude with a verifica-
    tion : for it does not traverse the allegations of the declaration; but offers matter dehors to repel the action; to which new matter the plaintiff ought to have an, opportunity of replying and denying the fact; otherwise there is no affirmation, and denial; without which there could be no issue; and, consequently, none has been tried. The verdict ought to be set aside, and a repleader awarded down to the declaration.
    Duval, contra.
    The plea of payment does contain a traverse; for the declaration avers that the defendant has not paid the debt; and, consequently, the plea affirming payment, is an express denial of the plaintiffs’ allegation; and perhaps, payment is the general issue in this country; but, at most, however, it is otily a misjoinder of issue, which is cured after verdict.
    
      
      PIeading and Practice — Plea of Payment — Corehi sion. — The plea of payment, whether it be in as-sumpsit or debt, should conclude to the country. Douglass v. Central Land Co., 12 W. Va. 502, citing Henderson v. Southall. 4 Call 371, at page 509. But in Nadenbousch v. McRea, Gilmer 228. it is held that, a general replication to the plea oi payment, does not of itself constitute an issue.
    
   *PÉR CUR.

The court is unanimously of opinion that the plea of payment is responsive to the negation of non-payment in the declaration; and that the act of assembly, by allowing a general plea of payment in all cases, with a right to prove all anterior payments, in fact, makes it a general issue, in this country. Affirm the judgment.  