PAYMENT.

See BILLS OF EXCHANGE, &c, 5.

1. Where a chose in action is
transferred to a creditor by his
debtor, the presumption is that
it is not intended as payment, if
not so expressed. Leas v. James.

307

PAYMENT, WITH LEAVE.

1. Under the plea of payment
with leave, the jury cannot find
any sum due frm the plaintiff
to the defendant. Anderson's
executors v. Long.

55

2. Under the plea of payment to
a scire facias on a mortgage, the
mortgagee may give evidence
to show a variety of circum-
stances between the parties pre-
vious to its being given, proving
circumvention and deception
on the mortgagee, and that a
judgment in ejectment against
the mortgagor, which was one
of the inducements to his giving
the mortgage, was obtained by
surprise and improperly used
by the mortgagee. Robinson v.
Eldridge.
140
3. Parol evidence is admissible
under the plea of payment to a
suit on bond against a surety, to
show, that he executed the bond
under a declaration by the ob-
ligee, that his signing was
mere matter of form, and that
he never should be called on for
payment. Miller v. Henderson.
290
4. If the defendants plead pay-
ment with leave, and go into an
equitable defence, the plaintiff
may, under the replication of
non solvit, give evidence of other
special matter to rebut the de-
fendant's equity. McCutchen v.
Nigh.

344

5. In a suit on a forfeited recog-
nizance for a party's appearance
at the next Court of Quarter
Sessions, to answer a charge of
fornication and bastardy, on the
pleas of payment and nil debet,
evidence is not admissible, that
the party had married the mo-1.
ther after the date of the recog-
nizance.

No evidence is admissible under
these pleas, but what tends to 2.
show, either that the recogni-
zance was not forfeited, or that
it had been remitted by lawful
authority.

Ii is error for the court to charge
the jury on such pleas, that al- 3.
though the party did not ap-
pear, yet if he married the mo-
ther, even with the fraudulent
intention of deserting her after
marriage, the defendant was
entitled to a verdict, unless

PLEADING.

See SATISFACTION, 1.

355

MISSORY NOtes.

PROBATE.

See WILLS, 1.

PROTEST.

See EVIDENCE, 29.

RECOGNIZANCE.

See EXECUTION.

REFERENCE.

See ARBITRATION.

RELEASE.

1. The daughter of the testator
took under his will an estate in
fee in a portion of land, to be di-
vided off to her by three per-
sons; after the division she mar-
ried, and, by a mistake of the
scrivener, a release was execut-
ed from the other children to
the husband alone in fee simple,
which purported to be in execu-
tion of the will, and contained a
covenant on their part, never to
claim any right in the land; the
wife died without issue: held, in
ejectment by the releasors, that
they were not barred of their
right to the land. Leek v. Cow-
ley.
176.

On the issue of no rent in ar-
rear, the tenure of the plaintiff
cannot be inquired into nor is
the charge of the court in that
respect material.

In avowry for rent, if there is a ge-
neral verdict for the defendant
for a sum certain but no finding
of the value of the goods dis-
trained, the judgment is a judg-
ment at common law, de retorno
habendo. Williams v. Smith. 202
5. If the defendant in replevin
makes cognizance as bailiff, and
states that A. B. held the lands as
tenant under a demise at a year-
ly rent and rent accrued, and
plaintiff replies non demisit and
no arrear, the plaintiff may with
previous notice of special mat-
ter in evidence, that A. B. took
the lands for a certain period,
and paid rent in advance. Beau-
mont v. Wood.

RESTITUTION.

433

1. Where the court reversed a
judgment on a scire facias post
annum et diem, on which the de-
fendants land was sold, and part
of the money paid to the other
jugdment creditors, and part to
the plaintiff, the court refused to
award restitution, but ordered
the money received by the plain-
tiff to be brought into court to
await their further order; and
took no order as to that portion
paid to the judgment creditors,
as they were not before the court.
Kirk v. Eaton.

ROADS.

103

The report of viewers vacating
an old road and substituting a
new one, must be accompanied

Where an administrator sues
for a debt due to himself for
goods of the intestate sold by
him to the defendant, the defen-
dant cannot set off a debt due
from the intestate to him. Wol-
fersberger v. Bucher.

10

2. If a sale of land be made by an
executor under an authority giv-
en by will, and the administra-
tor cum testamento annexo, after the
executor's death, brings eject-
ment to compel payment of the
residue of the purchase money,
the vendee cannot in such suit
give in evidence by way of set
off or as an equitable defence
that the administrator by means
of a mill-dam existing at the
time of the sale, and ever since
had overflowed a valuable por-
tion of the land. Cornell v.
Green.
The jury cannot, under any plea
or notice, find a sum due from
the plaintiff to the defendant, to
be deducted from another debt
due from the defendant to the
plaintiff. Anderson's Executors v.
Long.
65

4.

14

Under the plea of set off, evi-
dence is admissible to show, that
since suit brought the plaintiff
acknowledged, that a settlement
had taken place after the action
was instituted, and that he there-
by became indebted to the de-
fendant and gave him a note for
the debt, and such note is also
admissible. Marshall v. Sheri-
dan.
268

SETTLEMENT.

See LIMITATIONS. DEED, 1.