
    The New-York Dry Dock Company vs. M’Intosh.
    If, jn;assumpsit, an issue he joined upon a .plea of payment, and no evidence be given at the trial by either party, the plaintiff will be entitled to" a verdict.
    The verdict, however, must be for nominal damages only, unless the plaintiff produce evidence of the extent of his claim; for the plea does not admit any specific amount.
    If, in such case, the defendant prove a payment to the plaintiff, no matter how small the amount, the onus will devolve upon the latter of showing that his. demand exceeded the payment; and if he fail to1 do this, the defendant will be entitled to a verdict.
    Assumpsit, tried before Edwards, C. Judge, at the New-York circuit, in July, 1841. The declaration contained the common counts and concluded .by claiming one thousand dollars damages. The defendant pleaded noñ-assumpsit. He afterwards interposed a plea, averring that, since the last continuance &c., to wit, on <fcc., he paid to the plaintiffs the several sums of money mentioned in the declaration. The plaintiff replied, taking issue. On the trial, the defendant, who held the affirmative of the issue, proved that the plaintiff were the holders of a promissory note against him amounting to $535, and that he paid the same .on the day mentioned in the plea. The circuit judge held this a complete defence, no evidence of any further claim being given by the plaintiffs. The plaintiffs’ counsel excepted. The jury rendered a verdict in favor of the defendant ; and the plaintiffs now moved for a new trial on a bill of exceptions.
    
      A. Crist, for the plaintiffs.
    By pleading puis, the defendant waived his previous plea, and there thus being no general issue in the case, the defendant was bound tó prove that he had paid the whole amount of damages laid in the declaration, .
    
      J. S. Carpentier, for the defendant.
   Per Curiam.

No doubt the general issue was'waived by the plea puis. But although* the plea of payment in assumpsit admits some damages, it does not admit the whole amount laid ip the declaration, any more than a default or demurrer. If the defendant had given no evidence under his plea, the plaintiffs would have been entitled to a verdict for six cents; but they could not have got more without proving that they had a larger demand. When the defendant proved that he had paid $535, it was for the plaintiffs to show that they had a further claim before they could have a verdict. It would have been so if the defendant had proved the payment of a single dollar.

The defendant has pleaded payment in the usual form. He • was only bound to prove the substance of the issue. That does not depend on the form of words.' The substance of the issue was, that the plaintiffs had been paid their debt or demand. On proving the payment and acceptance of any sum of money, the burden was thrown on the plaintiffs of showing that their whole debt was not satisfied.

New trial denied. 
      
       See Cowen Hill's Notes to Phill. Ex. 449, 450, 466, and the cases there cited.
     