#### Roswell Belknap *v.*Albert Billings.

May Term, 1905.

Present: Rowell, C. J., Tyler, Munson, Start, Haselton, and Powers, JJ.

Opinion filed November 21, 1905.

*Assault cmd Battery*— Accord *and Satisfaction*— Promissory *Note*— Prima *Bade Settlement*— Instructions.

In trespass for assault and battery, where the issue is whether a certain note given by defendant to plaintiff was accepted by the latter in satisfaction of the cause of action, or was so accepted only on condition that it should be paid when due, it is not error to refuse defendant’s request to charge that “a promissory note given and received in payment for a personal injury resulting from a tort is *priftia facie*payment therefor, and a suit cannot be maintained for that tort whether the note is paid or not.”

Trespass for assault and battery. Pleas, the general issue, *molliter manus imposuit*in defence of the possession of defendant’s dwelling, self-defence, and' accord and satisfaction. Trial by jury at the December Term, 1904, Windsor County, *Watson,*J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.

*Davis & Davis*for the defendant.

The court should have complied with defendant’s request to charge. *Thascher*v. *Densmore,*5 Mass. 302; *Fowler*v. *Bush,*21 Pick. 231; *Hutchins*v. *Olcutt,*4 Vt. 549; *Torry*v. *Baxter,*13 Vt. 432; *Follett*v. *Steele,*16 Vt. 35; *Farr*v. *Stevens,*26 Vt. 299; *Coilamer*v. *Dcmgdons,*29 Vt. 32; *Wait*v. *Brewster,*31 Vt. 516; *Parker*v. *Adams,*59. Vt. 154; *Goodnowr*v. *Tyler,,*7 Mass. 43; *Maneely*v. *McGee,*6 Mass. 143; *John*
      *215
      *son*v. *Johnson,*11 Mass. 362; *Chapman*v. *Durant,*10- Mass. 47; *Butts*v. *Dean, Admr.,*1 Met. 76.

*Joseph C. Enright,*and *Edward R. Buck*for the plaintiff.

Haseeton, J.

This was an action of trespass for assault and battery. .The defendant filed four pleas, one of which was that the defendant gave and the plaintiff accepted a certain promissory note in full satisfaction and discharge of the alleged cause of action. To this plea the plaintiff replied that the note therein mentioned was not accepted by the plaintiff in payment and satisfaction of the cause of action in the declaration alleged, but that the note was accepted as satisfaction only on condition that it be paid when due, and that the note was long overdue and remained unpaid.

At the June Term, 1902, of the Windsor County Court this replication was held sufficient on demurrer, and later this Court so held. See *Belknap*v. *Billings,*76 Vt. 54, 56 Atl. 174, where the pleadings, which are referred to in the bill of exceptions herein, are stated with sufficient fullness.

At the December Term, 1904, of the Windsor County Court, the case was tried by a jury on its merits, and came here on a single exception. That exception is to the refusal of the court to comply with a request to charge: “That a promissory note given and received in .payment for personal injury resulting from a tort is *prima facie*payment therefor, and a suit cannot be maintained for that tort whether the note be paid or not.” But if a note is, in fact, given and received in payment, it is payment. To say expressly or impliedly that it is merely *prima facie*payment when given and received in payment -would be confusing and incorrect, and the court rightly declined to comply with the request.

*216The briefs of counsel have largely to1 do with propositions other than that embodied in the request which the court did not in terms comply with.

In this case the parties were at issue as to whether the accepting of a certain note was to operate as payment or not. The defendant claimed and his evidence tended to show that it was so agreed; but the plaintiff claimed and his evidence tended to show that the note was to operate as payment only in case it should be paid when due.

The full charge is referred to, and upon examining it we find that the jury were correctly and fully instructed upon the subject-matter which the request was probably intended to cover.

*Judgment affirmed.*