#### LOUISA S. MOORE et al v. RICHARD W. BROWN, Adm’r.

To support tlie plea of'retainer by an administrator or executor, it is prima *107 facie sufficient for Mm to produce a bond or note, and prove its execution by the intestate or testator, and the onus of proving a payment, or other ' matter of discharge, devolves on the opposite party.

Petition for a distributive share, tried before Caldwell, J., at the last Fall Terra of Northampton Superior Court.

It was referred to the clerk of the Court to state an account of the assets in the hands of the administrator and the disbursements made by him; and while the matter was open before him, the defendant produced two bonds, purporting to be executed by the intestate, payable to the defendant; one, for two hundred and forty-nine dollars, payable one day after date, and dated 3rd of April, 1847 — the other for one hundred and eighty-five dollars, payable in the same way, dated 12th August, 1848, which he insisted on as retainers. The commissioner aillo wed these claims, and the plaintiffs excepted to the report.

The first ground of exception was, that the papers offered were not the deeds of the intestate. 2ndly. That they had been paid.

The Court ordered issues to be tried by a jury, embracing these two questions, and it was upon the trial of these issues, that the exceptions, now under consideration, were taken.

It appeared, in evidence, that the defendant was the son of the intestate, Elsey Lawrence ; that he arrived at full age in 1847, and continued to live with his mother until 1848, when he married, and in the latter part of that year, became insolvent. lie continued to reside with his mother until her death, in the year 1852, when he became her administrator.

The Court left the question, as to the execution of the bonds, to the jury, upon the evidence adduced. Upon the other part of the case, he instructed the jury that, if an administrator alleges himself to be a creditor of the intestate by bond, as in this case, and insists on the same as a retainer, he must offer other evidence that the debt exists, over and beyond the mere production of the bonds, and that no other evidence had been offered. Such, said the Court, is the law, to guard against the danger of an. administrator’s finding bonds payable to *108himself among his intestate’s papers, which had been paid off in his -life-time, but not cancelled. The defendant excepted.

The jury returned for their verdict, that the bonds in question, had been duly executed by the intestate; and on the second issue, that they had beenpcdd.

The report was reformed in conformity with this finding, and the same having been confirmed, judgment was rendered thereupon for the plaintiffs, and the defendant appealed.

Barnes, for the plaintiffs.

Foniglanid and Hardy, for the defendant.

Pearson, C. J.

His Honor, in the Court below, was of opinion, that where an administrator claimed “a retainer” in respect to a bond, payable to himself, purporting to have been executed bj' the intestate, the production of the bond by the administrator, and proof of its having been executed by the intestate, was not sufficient, and the .administrator was required to offer “ other evidence of the existence of the debt.” This, as he said, “ was a rule of law .adopted to guard against the danger, that an administrator might find a bond, payable to himself, among the papers of his intestate, that had been paid, but not cancelled in his life-time,” and fraudulently attempt to set it up as a retainer.

We are not aware of the existence of any such rule of law; on the contrary, -it is a rule of law, that the production of a bond, or single bill, for the payment of money, and proof of its duo execution, establishes the existence of the debt, and is sufficient to support an action upon the instrument, or to entitle the party to the benefit of it by way of set off, or retainer; and if the opposite party alleges “ payment” or other matter of discharge, the onus of proof is upo'n him.

We suppose that his Honor was misled by a misapprehension of the principle, decided in Finch v. Ragland, 2 Dev. Eq. 142, and Whitted v. Webb, 2 Dev. and Bat. Eq. 442, where it is held that to establish “ a voucher,” in respect to a note, purporting to have been given by the intestate to a third *109person, it is not sufficient for an administrator to produce the note and prove its due execution ; but he must prove payment by himself. The distinction is this : where an administrator claims a “ voucher,” he alleges not merely the existence of the debt, hut the further fact, that he has paid it in the course of administration; of course, the onus of proving this fact, is upon him ; hut where an administrator claims “ a retainer,” it is in the nature of a cross action, and he alleges merely the existence of a debt due to him by his intestate, and the allegation of payment, or other matter of discharge, comes by way of plea from the other side, and of course, the onus of proving the alleged payment, or matter of discharge, is upon the party alleging it.

”We assent to the suggestion, that notwithstanding an administrator is required to take an oath for the faithful discharge of his duties, he may be tempted to commit a fraud in consequence of his having free access to the papers of his intestate, and wo think that, in the present case, there were many circumstances fit to be left to the consideration of a jury, tending to show that the notes had been paid, or satisfied, in some way. But it was error to hold, that as a rule of law, the onus of proof was upon the administrator, in respect to the allegation of payment, or other matter of discharge; and wo are unable to see, in the fact of his being administrator, any ground for departing from the rule, that the production of the bond and proof of its due execution, established the existence of the debt, and entitled him to the benefit of it, in the absence of proof of payment, or other matter of discharge.

Pee Cueiam, Judgment reversed, and a venire de novo.