As the record does not show that a bill of particulars was filed or ordered to be filed, the plaintiff’s first point might properly have been refused for that reason. Moreover, giving the plaintiff credit for all the payments shown and applying the rule as to appropriation of payments, there was no variance between the proofs and the defendant’s claim as set forth in the correspondence between counsel.
It is urged that when rent is payable monthly or quarterly a receipt for the last month’s or the last quarter’s rent is prima facie evidence of the payment of all rent previously accrued. But it does not follow that the plaintiff’s second point should have been affirmed. One reason that has. been suggested is that the receipt relied on as raising this presumption does not unequivocally show that it was given for the rent of any specific months. But aside from that, there was sufficient evidence to warrant a jury in finding that the rent for previous months had not been paid. In his general charge the learned trial judge recognized the legal principle, and submitted to the jury the question whether or not the presumption had been rebutted. In doing so we think he went quite as far as the plaintiff had a right to ask, under all the evidence.
No authority has been cited for the proposition, and we know of none, that where a receipt is given for rent “on account” it is to be presumed that it was for the rent of the particular month in which the payment was made. No specific appropriation of such payment having been made by the tenant the law would apply it, or at least give the landlord the right to apply it, to arrears that had accrued prior to the month in which it was made.
In his avowry the defendant set up a lease dated April 19, 1897, at a yearly rent of $150, payable monthly in advance, and alleged that at the time of the distraint in April, 1899, the sum of $78.05 was in arrear. The plaintiff pleaded “ no rent in arrear,” and “payment.” The court correctly instructed the jury that the issue, as thus made, was not limited to the last *236two months of the term, and that the defendant having proved the lease and the occupancy under it, the burden of proving payment was then cast on the plaintiff. Unfortunately for him the payments shown by him left him in arrear the exact amount claimed by the landlord. We find no error in the instruction complained of in the fourth assignment.
The admission in evidence of the receipt dated May 18,1899, would not have helped the plaintiff, but it was properly excluded because it was given after this suit was brought. It threw no light on the issue.
The objection (which by the way appears in the bill of exceptions, but was inadvertently omitted from the assignment) that the question referred to in the seventh assignment was leading was well taken. The plaintiff was permitted to testify fully to all the facts and circumstances connected with the payment in March, and the court committed no error in refusing to permit him to testify to the legal conclusion which he drew therefrom. The same remark applies with equal if not greater force to the eighth and ninth assignments.
The judgment is affirmed.