
    Charles W. Goss vs. Oscar Calkins.
    Plymouth.
    November 20, 1895.
    November 26, 1895.
    Present: Field, C. J., Allen, Holmes, Knowlton, & Lathrop, JJ.
    
      Answer — Defence of Payment.
    
    In an action of contract, the defence of payment is open under an answer to a declaration in set-off alleging “ that, if the defendant shall prove that plaintiff ever owed the defendant the amounts set forth in said counts, he has paid the same in full.”
    Contract. The defendant filed a declaration in set-off, consisting of four counts upon promissory notes, one count upon an I O U, and a sixth count upon an account annexed. The answer to the declaration in set-off was as follows:
    “ And now comes the plaintiff, and for answer to the defendant’s declaration in set-off and to each count therein contained, says that, if the defendant shall prove that plaintiff ever owed the defendant the amounts set forth in said counts, that he has paid the same in full.”
    At the trial in the Superior Court, without a jury, before Mason, C. J., the plaintiff offered evidence of payment under this answer, to which the defendant objected, and asked the judge to rule that no evidence of. payment was admissible thereunder. The judge refused so to rule, and ruled that the plaintiff could prove payment thereunder; and the defendant alleged exceptions.
    
      B. C. Moulton & E. D. Loring, (V. J. Loring with them,) for the defendant.
    
      H. H. Chase & F. M. Bixby, for the plaintiff.
   Allen, J.

This case cannot be distinguished from Swett v. Southworth, 125 Mass. 417, where it was held that the defence of payment was open under an answer like that in the present case. Exceptions overruled.  