Warner, Chief Justice.
The plaintiffs sued the defendant on a due-bill for $106.24, it being for amount due them on account of family supplies to this date — 1st of May, 1875. The defendant pleaded that the plaintiffs were grocery merchants, and sold by wholesale and retail; that said due-bill was given for such articles as were sold by weight and measure, and that plaintiffs did sell said articles by weight and measure without ever having their said weights and measures tested as required by law. On the trial of the case, the jury, under the charge of the court, found a verdict for the plaintiffs for the amount of their claim. A motion for a new trial was made on the grounds therein stated, which was over-' ruled, and the defendant excepted.
1. The burden of proof was on the defendant to show that the “ family supplies,” for which the due-bill was given, were sold to him by the plaintiffs, by weight and measure, in violation of section 1589 of the Code ; therefore there was no error in the charge of the court, nor in its refusal to charge as requested, in relation to that point in the case.
*2672. There was no error in the charge of the court in view of the evidence in the record, that “ if the defendant paid off a gas bill for plaintiffs, without their consent, request, or knowledge, he was not allowed to plead it and have it allowed as a set-off.”
8. In view of the evidence in the record, there was no error in overruling the defendant’s motion for a new trial, and inasmuch as it appears from that evidence that the defendant said “ that he was going to file a plea in this case, but he did not expect to accomplish anything by it, all that he wanted was to gain time, that the note was just, and he owed the money,” therefore, let the judgment of the court below be affirmed, with ten per cent, damages for delay in bringing the case up to this court, as provided by the 4286 section of the Code.
Judgment affirmed with damages.