Barbour v. Washington Fire & Marine Insurance

BBIOKELL, C. J. The plea of payment is in the form prescribed by the Code, and must be understood as affirming that a payment of the notes had been made, which was valid and operative against the plaintiff as indorsee. A general replication would have cast on the defendants the burden of proving such a payment. If the payment was made to the payees, after the plaintiff had acquired the notes for value, before maturity; or if after maturity, and with notice or knowledge that the plaintiff was the holder, it would not have been available.—Ross v. Drinkard, 35 Ala. 434. The plaintiff unnecessarily resorted to a special replication, which neither traverses, nor confesses, nor avoids the matter of the plea, and was consequently demurrable.—Mason v. Craig, 3 Stew. & Port. 389; Winter v. Mobile Savings Bank, 54 Ala. 172. Every averment of the replication may be true, and the payment may have been made to the plaintiff. The demurrer to the replication ought to have been sustained. Eeversed and remanded.