inferior degree have been paid before the commencement of the action, or if debts of a superior degree have been paid while the action was pending, this also may be shown under a special plea ; but in the former case, it must be averred and proved that the payment was made without notice of the plaintiff's claim.1 By the common law, an executor or administrator will be presumed to have notice of judgments of a court of record, and all other debts of record; but of other debts, actual notice must be proved.2 Where plene administravit is pleaded to an action of debt on bond, the defendant must prove that the debts paid were due by bonds sealed and delivered, or that they were of higher degree, and entitled to priority of payment; but where this issue arises in an action for a debt due by simple contract, it is sufficient to prove the prior payment of a debt of any sort, without proof of the instrument by which it was secured; for it is a good payment in the course of administration. In either case, the creditor is a competent witness, to prove both the existence of his debt and the payment of the money; but where the debt is said to have been due by bond, which has been destroyed, it has been thought that the attesting witnesses, or some other evidence of the existence of the bond, ought to be produced.5

§ 349. Same subject. Under this issue, the defendant, by the common law, may in certain cases give in evidence a retainer of assets to the amount of a debt of the same or a higher degree, due to himself; or, to the amount of the expenses of administration, for which he has made himself personally responsible; 7 or, to the amount of debts of the same or a higher degree, which

6

privileged debt, he cannot plead plene administravit, generally, but is bound to aver, that he had fully administered before notice of such debt." United States v. Hoar, 2 Mason, 317, 318.

1 Sawyer v. Mercer, 1 T. R. 690; Anon., 1 Salk. 153; Toller, Ex'r, 269. But where the executor, more than a year after the decease of the testator, had paid all the debts and legacies, and paid over the remainder of the estate to the residuary legatee, without notice of any other claim, this was held admissible and sufficient, under the plene administravit. Gov., &c. of Chelsea Waterworks v. Cowper, 1 Esp. 275, per Ld.

Kenyon.

21 Com. Dig. 352, tit. Administration, C, 2; Dyer, 32 a. By statute 4 & 5 W. & M. c. 20, all judgments not docketed, or abstracted and entered in a book kept for that purpose, are reduced to the footing of simple contract debts. Hickey v. Hayter, 6 T. R. 384; Toller, Ex'r, 268.

8 Bull. N. P. 143; Saunderson v. Nicholl, 1 Show. 81.

Bull. N. P. 143; Kingston v. Gray, 1 Ld. Raym. 745.

5 Gillies v. Smither, 2 Stark. 528; ante, vol. i. § 84, n. 2, ad calc.

Bull. N. P. 140, 141; Co. Lit. 283 a; Plumer v. Marchant, 3 Burr. 1380; 1 Saund.

333, n. (8), by Williams.

7 Gillies v. Smither, 2 Stark. 528.

he has paid out of his own money, before the commencement of the action. But if the payment was made to a co-executor, to be paid over to the plaintiff, which he has not done, it is no defence; the receiver being in that case made the agent of the defendant himself, and not of the plaintiff.2 But in most of the United States, the right of an executor or administrator to retain for a debt due to himself, or for moneys which he has paid for expenses of administration, has been qualified by statutes, not necessary here to be stated; so that, ordinarily, he cannot retain for his own debt, until it has been proved and allowed in the court where the estate is settled, and then only under its decree, upon the settlement and allowance of his account of administration.

§ 350. Plea of retainer. In order to sustain the claim of retainer, it is necessary for the party to show that he has been rightfully constituted executor or administrator; and for this cause, as well as to prevent strife among creditors, an executor de son tort cannot retain for his own debt, even though it be of higher degree, unless he has since duly received letters of administration. But under the plea of plene administravit, he may show that he has paid other debts, in their order; or that, before action brought, he had delivered all the assets in his hands to the rightful executor or administrator.3

§ 351. Special pleas. If the defendant would give in evidence the existence of outstanding debts of a higher nature, entitled on that account to be preferred, but not yet paid, he can do this only under a special plea. If the debts are due by obligations already forfeited, the penalties are ordinarily to be taken as the amount of the debt; unless, by a proper replication, it is made to appear that the penalty is kept on foot by fraud. But if the obligation is not yet forfeited, the sum in the condition is to be regarded as the true debt, and assets can be retained only to that amount; for the executor, by payment of this sum, may save the penalty; and if he does not, it will be a devastavit. In these cases, when

1 Bull. N. P. 140; Smedley v. Hill, 2 W. Bl. 1105.

2 Crosse v. Smith, 7 East, 246, 258.

8 Bull. N. P. 143; Chitty's Prec. p. 301; Curtis v. Vernon, 3 T. R. 587, 590; Anon., 1 Salk. 313; Oxenham v. Clapp, 3 B. & Ad. 309.

United States v. Hoar, 2 Mason, 311; Bull. N. P. 141; 1 Saund. 333, notes (7), (8), by Williams; Id. 334, n. (9); Parker v. Atfield, 1 Salk. 311. If a bond creditor, after forfeiture, would have taken less than the penalty, and the executor had assets to the amount required, which he did not pay, it is evidence of fraud. Ibid. And if a

the defendant seeks to retain the assets in his hands to meet debts of a higher nature, whether by bond or judgment, though the plea, in point of form, contains an averment of the precise value of the goods in his hands, yet the substance of the issue is, that the value of the goods, whatever it be, is not greater than the amount actually due on the bond or judgment. And where an outstanding judgment is pleaded, with a replication of per fraudem, the judgment creditor is not a competent witness for the defendant to disprove the fraud.2 If several judgments or debts are pleaded, and the plea is falsified as to any of them, the plaintiff will be entitled to recover.3

§ 352. Admission by one of several executors. Where there are several executors or administrators, an admission by one of them that the debt is still due is held not sufficient to enable the plaintiff to recover against the others; though it may be properly admissible, as a link in the chain of testimony against them.4 Nor is such admission by one sufficient to take the case out of the statute of limitations as to all.5

judgment is confessed for more than is actually due, this is prima facie evidence of fraud; but the defendant may rebut it by proof that it was done by mistake. Pease v. Naylor, 5 T. R. 80.

1 Moon v. Andrews, Hob. 133; 1 Saund. 333, n. (7), by Williams.

2 Campion v. Bentley, 1 Esp. 343.

8 Ibid.; Bull. N. P. 142; Parker v. Atfield, 1 Salk. 311; 1 Ld. Raym. 678. But see 1 Saund. 347, n. (1), by Williams.

4 James v. Hackley, 15 Johns. 277; Forsyth v. Ganson, 5 Wend. 558; Hammon v. Huntley, 4 Cowen, 493.

5 Tullock v. Dunn, Ry. & M. 416; ante, vol. i. § 176. But see Hammon v. Huntley, 4 Cowen, 493.

HEIR.

§ 353. Evidence of heirship. The rules of evidence, applicable to the proof of pedigree in general, having been considered in the preceding volume,1 the present title will be confined to the evidence of heirship, where this fact is particularly put in issue, as the foundation of a claim of right, or of liability.

§ 354. Same subject. Where A claims as the heir of B, it will be necessary to establish, first, affirmatively, their relationship through a common ancestor; and, secondly, negatively, that no other descendant from the same ancestor exists, to impede the descent to A. Thus, in ejectment, where it was incumbent on the lessor of the plaintiff to prove that a younger brother of the person last seised, from whom he deduced his title, was dead, without issue, the testimony of an elderly lady, a member of the family, that the younger brother had many years before gone abroad when a young man, and according to repute in the family had died abroad, and that she never had heard in the family of his having been married, was held prima facie evidence of his having died without issue.2 But where the death is only proved in such case, without some negative proof of the existence of issue, it is not sufficient; the plaintiff being bound to remove every possibility of title in another, before he can recover against the person in possession. (a) Thus, also, if it were requisite to

1 See ante, vol. i. §§ 103-107, 131-134. Richards v. Richards, 15 East, 293, n.

(a) By statute in most of the United States, the laws of descent by primogeniture, as they existed at common law, have been abrogated, and several may be co-heirs, as, for instance, in those States where all the children are heirs. In such cases, although the mode of proof is somewhat changed, yet the principle remains, that any one who asserts that he and others are heirs must prove that others who might also be heirs are not.

Thus, where one sues as heir, he must show that the widow of the ancestor, if she is by law a co-heir, has either received the share to which she is entitled or has

2 Doe v. Griffin, 15 East, 293.

waived her right to it, so as to make him the only claimant. Schneider v. Piessner, 54 Ind. 524.

So where several joined in claiming as heirs of a deceased person, and proved that the deceased originally came from a certain place in Ireland and that he often, among his friends, had spoken by name of his father and brothers, half-brothers, and a sister, as still residing in that place, and the claimants then proved that their father lived in the same locality, that it was com mon repute in their family that they had an uncle in America of the same name as the deceased, that their father had broth

establish the title of A, as heir-at-law to his cousin-german, B, it would be necessary to prove the marriage and death of their common grandparents, and of their respective parents, through whom the title was deduced; that these were the legitimate children of the common ancestor; and that A and B were also the lawful issue of their parents; with evidence to show that no other issue existed, who would take the preference to A. But in charging one as heir, general evidence of heirship will be sufficient to be adduced on the part of the plaintiff, it being a matter more peculiarly within the defendant's own knowledge.1 Thus, if he is in possession of the property of the deceased, or has received. rents from his tenants, it is to be presumed that he claims them as heir.2

§ 355. Death. After a long lapse of time since the death of one who might have been entitled without any adverse claim, it may be presumed that he died without issue. The fact of the death of a party, but not the time of it, will be presumed after the expiration of seven years from the time when he was last known to be living. (a) And it may be inferred from the grant of letters of administration on his estate, in the absence of any controlling circumstances; since it is not the course to grant administration, without some evidence of the death.5 (6)

§ 356. Liability of heir. The liability of an heir generally arises upon the obligation of the ancestor by deed, in which the heir is expressly bound. He is liable, at common law, to an action of debt on the bond of his ancestors, if specially named; and in England, by statute, to an action of covenant. The like remedies

1 See ante, vol. i. § 79.

2 Derisley v. Custance, 4 T. R. 75.

8 Doe v. Wolley, 8 B. & C. 22; s. c. 3 C. & P. 402.

4 Doe v. Jesson, 6 East, 85, per Ld. Ellenborough ; ante, vol. i. § 41. The time of the death is to be inferred from the circumstances.

Rust v. Baker, 8 Sim. 443; supra, tit. Death.

Doe v. Nepean, 5 B. & Ad. 86;

5 See ante, vol. i. § 550; Succession of Hamblin, 3 Rob. (La.) 130. Ante, § 339, n. 6 Co. Lit. 209 a.

ers, and a half-brother, and a sister, and that their names corresponded with the names mentioned by the deceased, and that the name of their paternal grandfather corresponded with that of the father of the deceased, as given by him, and that the claimants were the sole surviving descendants of their father, and that all his brothers, sisters, and half-brothers were dead and had no descendants surviving, it was held that these facts constituted a suf

ficient proof of the heirship of the claimants. Cuddy v. Brown, 78 Ill. 415.

(a) A mere failure to hear from the heir at the residence of the ancestor, no inquiries having been made at the place of the heir's last known residence, is not proof that the heir died without issue after the lapse of seven years. McRee v. Copelin, Cir. Ct. St. Louis, Mo., 2 Cent. L. J. 813.

(b) But see ante, § 339, n.