Humphreys v. J. Bridgman, & Co. , 1 Morris 167 ( 1843 )

Per Curiam,

Masok, Chief Justice.

The defendants ir. error admit the doctrine, that in the action of assumpsit, payment may be given in evidence under the plea of the general issue. (Upon this point see the numerous authorities cited by the counsel for the plaintiff in error, and also 1 Chitty Pl. 419-4 Taunt. 165—Saund. on P. & E. vol. 2. p. 272.) But they contend that the 10th sec. of the Practice Act, Iowa Laws, vol. 1, page 372, required the plaintiffs in error to file a bill of items, stating the mode of payment, the time when, the amount, &c., in order to authorize the admission of testimony tending to prove a payment. This section is as follows:

“ The several District Courts shall have power in any action pending before them, upon motion, and good and sufficient cause shown and reasonable notice thereof given, to require the parties or either of them to produce books or writing, in their possession or power, which contain evidence pertinenit to the issue, and it shall be the duty of the defendent or defendants in all cases when, he, she or they intend to prove on trial any account or demand against the plaintiff, or plaintiffs, to file with his plea, a bill of the particular items of such accounts or demands, and no other accounts or demands shall be suffered to be proved to the jury or court, on that trial. ”

We find nothing in this section which would entitle the plaintiff in error to a bill of items, where the defendants in the District Court intend to prove on trial any “accounts or demands against the plaintiff. ” A payment to a merchant upon his bill, by a debtor, is neither an account nor demand; it is not a set-off, and it is only to such accounts or demands as are intended to be relied upon as a set-off, that the statute refers; and the common law doctrine admitting evidence of payment under the general issue, in assumpsit, is not varied by it.

We think that the court erred in rejecting the testimony. The judgment of the court below is reversed, and rejnanded for further proceedings.