Randolph County IL Archives Court.....Betts, V. Francis & Rippy 1826
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 9, 2009, 12:46 am

Source: Il Court Reports, 1819-1830
Written: 1826

June Term 1826

Josiah T. Betts, and Samuel Smith, adm's of Michael Jones, dec'd, Plaintiffs 
in Error, v. Jesse Francis and Mary Ann his Wife, and Finley Rippy, by W. C. 
Greenup, his Guardian, Defendants in Error.

ERROR TO RANDOLPH.

The words, "and the plaintiff doth the like," can not be taken as a traverse 
of a plea of payment.

A plea of payment is a good plea in an action of assumpsit, and without it 
evidence or counter demands can not be received.

This was an action of assumpsit for money had and received, &c., brought by 
the defendants in error, as administrators of M. Jones, deceased. The 
defendants below pleaded non assumpsit, and payment, without concluding the 
plea with a verification, simply stating that the intestate in his life time 
had fully paid and satisfied, &c. Issue was joined upon the first plea, and to 
the plea of payment the plaintiffs added a similiter. Jury, and verdict and 
judgment for the plaintiffs below. To reverse that judgment a writ of error 
was prosecuted to this court.

Opinion of the Court by Justice Lockwood. Several errors have been assigned in 
this cause which do not appear to merit consideration, except the fourth, 
which is, "That no issue was joined on the plea of payment." The words, "and 
the plaintiff doth the like," can not be taken as a traverse of a plea of 
payment. 1 Littell's Rep., 64.

A plea of payment is a good plea in an action of assumpsit, in order to enable 
the defendants to set off any demand they may have against the plaintiff's; 
and without such a plea, evidence of counter demands could not be received.

From the record, this court cannot intend that the defendants were permitted 
to give evidence under tbe plea of payment. The judgment must therefore be 
reversed with costs, and the cause remanded with permission to the parties to 
amend their pleadings in the court below. (1)

Judgment reversed.

T. Reynolds, for plaintiffs in error. 

Starr, for defendants in error.

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(1) Although never expressly overruled by our court yet at this time this 
decision can hardly be sustained. That a plea of payment is a good plea is 
true; but that evidence of payment could not be given under the general issue 
is, we think, incorrect. In Crews v. Bleakley, 16 Ill., 21, the court said 
that evidence tending to prove payment may be given under the general issue. 
And this is now the settled doctrine. 2 Greenl. Ev., p. 423, sec., 516.

We apprehend the court was also in error in saying, "From the record, this 
court can not intend that the defendants were permitted to give evidence under 
the plea of payment." Because the plaintiff had failed to reply to the plea, 
the defendants could not be prejudiced thereby. If the parties go to trial 
without filing a replication, it will be cured by the verdict. See note to 
Brazzle et al. v. Usher, ante, p. 35, where the authorities are collected on 
this subject. See also Parmelee et al. v. Fischer, 22 Ill., 212. Stevenson v. 
Sherwood, id., 238.

Additional Comments:
Reports of Cases at Common Law and in Chancery, Argued and Determined in the
Supreme Court of the State of Illinois, From its First Organization in 1819, 
to the End of December Term, 1831 

By Sidney Breese, Counsellor at Law
Second Edition, with Additional Notes, By Edwin Beecher

Chicago: Callaghan & Company, 1877.

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