McLendon & Robinson v. Hamblin

A. J. "WALKER, C. J. As a general rule, the onus of proof of a payment is upon the defendant who pleads payment, and consequently it does not usually devolve upon the plaintiff to negative the alleged payment by the defendant. ¡Section 2813 of the Code, under the decision in Jordan v. Owen, 27 Ala. 152, establishes an exception to the general rule, so far as to make the negation of payment an element in the establishment by the plaintiff of “the correctness” of his demand by his own oath. The decision of Jordan v. Owen rests upon the peculiar language of the statute, and the unreasonableness and injustice of permitting the plaintiff to establish his demand by his own oath without denying the payment, while the defendant is only permitted to controvert by his oath what the plaintiff has asserted. The second clause of section 2779 of the Code directs that either party may be a witness on his own behalf, unless the adverse party swears that the testimony proposed to be given is untrue. This clause of the section we understand as embracing cases within a justice’s jurisdiction, “when the matter in controversy, or damages claimed, exceed twenty dollars.” This case falls within that class. The reasoning upon which Jordan v. Owen, supra, is based, has no application here. The language of the statute is different; and both parties have a common right to testify, “ unless the party against whom the testimony is offered, swears that the testimony proposed to be given is untrue.” The exclusion by the plaintiff from his testimony of the subject of payment would not preclude the defendant from testifying to a payment. The statute is essentially different from that construed in Jordan v. Owen, and that decision can have no influence in 88 its construction. In cases falling within the second clause of section 2779, the onus of proving payment is upon the defendant; and if his testimony in support of the payment is contradicted by the oath of the plaintiff, asserting that such testimony is untrue, the plea of payment is unsustained, unless other evidence be adduced. The judgment of the court below is reversed, and the cause remanded.