Appellant brought suit before a justice of the peace against appellee on an account for merchandise amounting to $25.80. There were no written pleadings, and we can only determine the issue joined by the evidence adduced. The goods were sold on a credit in 1892. The correctness of the account as to items and amount was not disputed, but appellee claimed that the account had been paid. There was no presumption of payment, and the burden to show it was upon the appellee. Pelham v. Moreland, 11 Ark. 442 ; Wheat v. Moss, 16 id. 243 ; Mann v. Scott, 32 id. 593 ; Wood, Practice Evidence, 213 ; McKinney v. Slack, 19 N. J. Eq. 164 ; McLendon v. Hamblin, 34 Ala. 86.; Buzzell v. Snell, 25 N. H. 474 ; Caulfield v. . Sanders, 17 Cal. 569. Therefore the court should have instructed the jury, as requested by appellant, that “the burden of proof is upon the defendant to show that he has paid the $25 alleged to have been paid by him.”
Reversed and remanded for new trial.