
    William M. Winn vs. Grey Skipwith.
    In an action of covenant on a penal bond conditioned for the payment by the obligor of certain sums of money to the obligee, and also for the payment by the obligor of “two notes” given by the obligee to a third party, the whole being the purchase-money of a tract of land bought by the obligor of the obligee, the amount of the notes npt being specified in the bond, the declaration alleged that the amount of the two notes was five thousand dollars, and that they had not been paid; the plea alleged performance of the covenant, in this, that the defendant had paid “ the notes in the plaintiff’s declaration mentioned according to the effect of the covenant: ” held, on this state of pleading, there being no other proof than the covenant, that the plaintiff was entitled to a verdict for the amount of the two notes, as alleged in the declaration; he confessed that their amount had been truly stated by averring their payment; and it became necessary, therefore, in order to avoid the effect of his confession, to prove the payment.
    Such a plea, though defective in form and probably bad on demurrer, would be aided by the verdict and rendered valid to support the judgment.
    In error from the circuit court of De Soto county; Hon. Hugh R. Miller, judge.
    The facts appear sufficiently in the opinion.
    
      Jno. W. C. Watson, for plaintiff in error,
    Cited 3 S. & M. 234, 248; 5 Pet. Rep. 140, 148, 149; 7 S. & M. 197; Holliday v. Cooper, 1 S. & M. 633.
    
      Craft, on same side.
    
      D. Mayes, for defendant in error,
    contended,
    1. That the verdict was not against evidence, even if the damages were excessive, and that the court should not disturb the verdict, inasmuch as there was nothing in the record to show that a new trial would produce a different result. On this point many authorities were cited.
    
      2. That, by the plea, the whole declaration was admitted, except the breach. The case of Simonton v. Winter, 5 Pet. 141, was commented on, as sustaining in principle the verdict in this case.
    
      Anderson, on same side,
    Cited Step. PL 228, 278; 2 Step. N. P. 1164; 1 Harrison’s Dig. 723 ; 3 Chit. PL 985; Saund. PL & Ev. 323; 2 Greenl. Ev. 191, § 233; l Chit. PL 523; 1 Saund. PL & E. 393; Com. Dig. Tit. PL Q. Y. 13; Bul. N. P. 165 ; 1 B. & P. 640; 1 Greenl. Ev. 89, § 74; 2 Phil. Ev. 174; 1 lb. 171; Cow. & Hill’s Notes, 1213; 3 Dana, 86, 87; 3 Chit. PL 1001; 1 Arch. N. P. 264, (24 Law Lib.;) 10 Mass. Rep. 80.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of covenant, brought by the defendant in error, upon an agreement for the sale of a tract of land. The agreement was in the form of a penal bond, and the condition recited “ That Winn was to pay for the land $400 in cash, to give his note to Skipwith for $400, and to pay two several notes given by Skipwith to the American Land Company, for said tract of land, which notes are now due and unpaid.” The amount of these notes is not stated in the agreement. The declaration avers their amount to have been $5000, and that they had not been paid by the defendant. The plea alleges, by way of defence, “ That the defendant had kept his covenant in this, that he well and truly paid oif said two several notes in the plaintiff’s declaration, mentioned according to the form and effect of said indenture or obligation.” Upon the trial, the only evidence introduced by the plaintiff, was the covenant; the defendant offered no testimony. The jury found a verdict, upon this state of facts, for the plaintiff for $5000. There was a motion,for a new trial, because the verdict was contrary to the law and evidence. The motion was overruled, and the case thence comes by writ of error to this court.

The proper effect of the plea, and the extent to which it goes, must determine the correctness of the judgment. In this action, there is no general issue, and the defendant must plead specially, performance of the covenant, or excuse of performance, or matter of discharge. 1 Chitty, 487; 1 Tidd, Pr. 593; Roosevelt v. Heirs of Fulton, 7 Cowen, 74. The plea was not entirely correct in point of form, and would probably have been held bad on demurrer; but it is aided by the verdict, and rendered valid to support the judgment. Saunders on Pl. & Ev. 494.

Then what does this plea put in issue? Not the execution of the instrument; for that is admitted, when not denied. It puts in issue only the performance of the covenant, as stated in the declaration, and the burthen of proof is on the party pleading it. The general rule undoubtedly is, “ That he who asserts the affirmative, must prove it, and that if the defendant confesses and avoids the count, he admits the facts stated in the count.” Simonton v. Winter et al., 5 Peters, 148.

In this instance, the defendant failed to support his plea by proof, and the jury having found against him, there is no ground for reversal.

Judgment affirmed.  