The opinion of the court was delivered by
Peck, J.The only qustion in the county court, and the only point made in argument in this court is, whether the evidence on the part of the plaintiff was sufficient to entitle him to recover the one hundred and eighty dollars for the oxen, and the nineteen dollars for articles sold at auction. The only proof was the defendant’s disclosure in the suit, Holden v. the intestate, in which the defendant in this suit was summoned as trustee. The disclosure was sworn tO' December 9th, 1865, and contains an admission of an indebtedness *617by this defendant to the intestate .for these two items, payable in the month.of January, then next.
Tt is urged by the defendant’s counsel, that this evidence did not show an indebtedness existing at the time of trial, as the defendant may have paid it; and that it is to be presumed he did pay it after the-disclosure was filed, and when it became payable by the terms of the contract. But the plaintiff having shown the existence of the indebtedness, the burden was cast upon the defendant to show that the debt had been paid, or otherwise extinguished or discharged. "When a fact is proved, which in its nature is continuous, the general rule is, that it is presumed to exist till the contrary is proved. The fact that the debt had not become payable at the time the defendant admitted its existence,- does not take the case out of this general rule. Payment, being an affirmative fact to be done or performed by the defendant, was for the defendant to prove. It was not for the plaintiff to prove the negative. It is insisted by the counsel of the defendant, that it should be presumed that these items were embraced in the defendant’s note given in evidence on the part of the plaintiff. But on looking at dates, it is seen that the note is dated January 1st, 1865, nearly a year before the date of the disclosure. It is suggested by the defendant’s counsel, that there must be a mistake in the date of the note ; that it should have been dated January 1st, 1866 ; and the fact that the note is not mentioned in the defendant’s disclosure would seem to favor the suggestion. But if the defendant relied on the fact of such mistake, the fact should have been proved and found in the exceptions ; this court can not presume it. There is one fact in the case which tends to rebut the presumption of payment. The trustee suit was pending till terminated, without judgment against the trustee, by the death of the plaintiff’s intestate. Therefore, during the life of the intestate, the defendant could not safely have paid the debt, and it is not probable he would have done so.
In addition to this question as to the burden of proof, the counsel of the plaintiff insists, that as the case was tried upon the general issue without any plea or notice of payment, the defendant had no right to rely on payment in defence. It may be a question whether debitum in presentí solvendam, in futuro, constitutes a “ right of action which *618once existed,” within the meaning of the statute. In a strict legal sense, a right of action implies a right to- sue ; and in this sense, if a party pays a debt when it becomes payable, no right of action ever existed. It may therefore be regarded as an open question, whether a defendant may not prove payment under the general issue, notwithstanding the statute (Gen. S-tat. p. 291, ch. 33, § 15,) if such payment was made before or at the time the debt became payable. This question we leave undecided until a ease arises which necessarily involves it, as the other ground is sufficient to warrant the affirmance of the judgment.
Judgment affirmed.