#### J. C. HARMON v. HENRY TAYLOR.

Evidence — Judge’s Charge — Burden of Proof.

In an action upon a note, the execution of which is admitted, but payment is pleaded, it is not error in the Court to instruct the jury that the burden is upon the defendant, and if they are in doubt they should find for the plaintiff.

*342Ctvil action, tried before Boykin, Judge, at Fall Term, 1887, of Watauga Superior Court.

There was judgment for the plaintiff, from w’hich the defendant appealed.

The facts are fully stated in the opinion.

Messrs. O. H. Armfield and W N. Scales, for the plaintiff.

Messrs. J. F. Morphew and W. B. Council, for the defendants.

Smith, C. J.

This action, removed by the defendant’s appeal from a judgment of a justice of the peace to the Superior Court of Watauga, is upon a promissory note of the defendant, made in February, 1878, under seal, to J. M. Stokes, and transferred to the plaintiff, in the sum of $91.00, with interest, to which the defence of payment, in whole or in part, is set up.

The averment in the answer is, that in 1881, there was a settlement between the parties, in which the plaintiff agreed that a counter demand, in an account upon defendant’s books in the aggregate of $104.03, should be received in satisfaction of the present claim This was denied, and upon the trial of the issues before the jury, the defendant and the payee gave conflicting testimony, the former testifying to the allegations in his answer, and the latter stating that these demands were not thus adjusted, but were satisfied out of wages earned by him while in the defendant’s service after the note was executed, and in this he was supported by the plaintiff’s testimony.

The Court in charging the jury, instructed them “that the execution of the bond sued upon being admitted, the plaintiff was entitled to recover, unless the defendant established to the satisfaction of the jury that the debt had been paid, and that if the jury, upon consideration of all the evidence, were left in doubt as to the payment, they should find for the plaintiff.”

*343Upon the two inquiries, has the defendant paid the note and how much remains unpaid, the response to the first was in the negative, and to the second, one hundred and fifty-two dollars and forty-four cents.

The defendant excepted to the charge.

We find no error in what the Court told the jury. The burden of showing payment rested upon the defendant, and in saying that he must establish this to the satisfaction of the jury, he but laid down a clear proposition of law, that the party alleging a fact must prove it.

There is no error and the judgment must be affirmed.

No error. Affirmed.