Chew v. Woolley

Per Curiam. This was an action by the endorsee against the endorser of two promissory notes, and the declaration states, that the defendant “ did not pay the said sums of [402] money in the said notes mentionedand the breach also alleges the default in the same terms, that the defendant u had not paid the said sums of money in the said notes mentioned.” The plea puis darrein continuance states, that the defendant did “ pay to the plaintiff the said several sums of money mentioned in the declaration of the plaintiff.” The plea is as broad as the declaration, and must be construed to be commensurate with the demand. It must be taken to embracé- the whole sum due on each note, which will of course include the interest ; and it was therefore not requisite to aver in the plea, that the sum was accepted in satisfaction. That would be turning a plea pf payment into a plea of accord and satisfaction. The allegation of payment of the demand implies the acceptance of the money by the plaintiff; and if the fact of payment had been traversed, and it had appeared in proof that the interest legally due on the notes had not been paid, the plea would have failed for want of proof; and if the fact was, that the plaintiff had thrown in the interest, then the plea ought to have stated that the sum paid was accepted in full satisfaction and discharge, as was done in the case of Johnston v. Brannan, (5 Johns. Rep. 268.) The good sense and mean-, ing of the plea, as it stands, is, that the defendant had paid the amount of the,notes, and if they were notes carrying interest, that he paid the interest also. Judgment for the defendant.