ron, 35 N. H. 484, 493; Stacy v. Thrasher, 6 How. (U. S.) 44, 59. Of course, duties and liabilities are imposed upon the administrator de bonis non by reason of this privity; these liabilities will be considered subsequently.

TRUSTS TO WHICH ADMINISTRATORS DE BONIS NON CUM TESTAMENTO ANNEXO SUCCEED.-Says Justice Sharswood in Evans v. Chew, 71 Pa. St. 47, 49: "It is as old as the year books 15 Hen. VII. fol. 11, b, that land is not a testamentary matter. Hence, a power relating to real estate given in a will to executors was a mere common law power to them nominatim; it did not therefore pass to executors, nor could it be exercised by an administrator de bonis non cum testamento annexo. The subject is learnedly and ably investigated by Mr. Justice Cowen in Conklin v. Egerton, 21 Wend, 430." Reference is then made to the change in the statute law of Pennsylvania, conferring upon administrators d. b. n. c. t. a. the powers of executors, and the following conclusion drawn: "It seems very clear and has always been considered that the intention of this legislation was confined to powers given to executors as such virtute officii, and did not extend to a power of sale collateral to or unconnected with their duties as executors: Ross v. Barclay, 13 Pa. St. 179; Keefer v. Schwartz, 47 Id. 503; Waters v. Margerum, 60 Id. 44." The same principle is reaffirmed in Lantz v. Boyer, 81 Id. 325, where the statute is considered to have placed administrators de bonis non cum testamento annexo on the footing of a surviving executor, but not on that of a testamentary trustee. And it will be found generally, whether in testamentary trusts concerning realty or personalty: Conklin v. Egerton, 25 Wend. 224; Roome v. Phillips, 27 N. Y. 357, 363, that the test by which to determine whether the trust survives to the administrator de bonis non cum testamento annexo or not is the intention of the testator. If, as was said in the Pennsylvania cases above, the trust was given to the executors by virtue of their office, and not to them personally by reason of any especial confidence reposed in them, and was to be exercised for the purposes of the administration, and not in respect to matters independent, then under statutes conferring upon administrators de bonis non the same powers and liabilities as the original representative, such de bonis non administrator with the will annexed will be authorized to execute powers designated in the will: Bailey v. Brown, 9 R. I. 79; Belcher v. Branch, 11 Id. 226; Kidwell v. Brummagim, 32 Cal. 436; Knight v. Loomis, 30 Me. 209; King v. Talbert, 36 Miss. 367; Ebert's Appeal, 9 Watts, 300; Warfield v. Brand, 13 Bush, 77; Brush v. Young, 28 N. J. L. (4 Dutch.) 237; Farewell v. Jacobs, 4 Mass. 634; Hall v. Imrin, 2 Gilm. (Ill.) 176; see Lockwood v. Stradley, 12 Am. Dec. 97, and note. LIABILITIES.-An administrator de bonis non is liable for the non-performance or malperformance of the duties of the administration. Like an original personal representative, he is bound to account for moneys received, and is answerable for negligent omission to reduce to possession the assets of the estate, whereby they may have been lost. If he loans the property without the security provided by law, he will be responsible for losses: Vardeman v. Ross, 36 Tex. 111. But it is for the unadministered assets alone that he is held responsible; for the maladministration of his predecessor he is not responsible: Brownlee v. Lockwood, 20 N. J. E. 239; Badger v. Jones, 66 N. C. 305; Ruff v. Smith, 31 Miss. 59; Bell v. Speight, 11 Humph. 451. The theory on which these cases were decided, namely, that there existed no privity between the administrator de bonis non and his predecessor, and that the former could not compel an accounting by the latter, and was not liable therefore for his maladministration, is not applicable where such privity and power, if not duty, to compel an accounting, are recognized by statute:

Taylor v. Benham, 5 How U. S. 233; Whitworth's Distributees v. Oliver, 39 Ala. 286, where the sureties on the bond of the administrator de bonis non were held liable for their principal's failure to collect assets in the hands of the original administrator. But with the lawful acts of the predecessor the estate comes to the de bonis non administrator charged: 2 Wms. on Ex. 917, g.. At common law, no privity existing between the executor and an administrator de bonis non, a judgment against an executor would be as to the administrator de bonis non, res inter alios acta, and therefore not binding upon him, nor admissible in evidence against him: Graves v. Flowers, 51 Ala. 402; S. C., 23 Am. Rep. 555. Nor were the statutory modifications of the common law by the Alabama legislature, enlarging the powers, duties, and liabilities of an administrator de bonis non, authorizing him to sue the administrator in chief for his devastavits, entitling him to executions on judgments recovered by his predecessor, and providing for the revival of suits commenced by or against the predecessor, deemed sufficient to create such a privity be tween the two administrations as would render the acts or admissions of, or judgments against the one administrator binding on the other: Id. But admissions of an administrator, which would be competent evidence against the estate represented by the same administrator, will bind his successor in the administration: Eckert v. Triplett, 48 Ind. 174. To a scire facias, however, against the administrator de bonis non to revive a judgment confessed by the former administrator, a plea may be interposed that the unadministered assets are insufficient to pay the original judgment: Kearney v. Sascer, 37 Md. 264. The court, in this case, clearly point out the distinction between those instances where the scire facias is issued against an administrator of the original administrator to revive a judgment recorded against the latter, and those wherein the scire facias is issued against the administrator de bonis non.

To the repayment of advances made by a former personal representative, the de bonis non administrator may be required to apply assets which have come to his hands: Nowell v. Bragdon, 14 Me. 320; Munroe v. Holmes, 13 Allen, 112. And should an order directing such payment be disregarded, the sureties on the bond would be held responsible. It is observable in passing that the sureties are not liable for amounts which the administrator de bonis non was not entitled to receive: Warfield v. Brand, 13 Bush, 77.

CRAIG V. CRAIG.

[3 RAWLE, 472.]

DEBTOR'S POSSESSION OF HIS BOND is evidence of its satisfaction by himself. POSSESSION OF BOND BY ONE OF SEVERAL OBLIGORS is not evidence that he has paid the whole.

THE PRODUCTION OF THE BOND is an indispensable part of the plaintiff's case in an action for contribution among obligors, where the joint indebtedness has been disputed.

THE ASSERTIONS OF A THIRD PERSON CAN AFFECT A PARTY only on the ground of assent, either tacit or express, to the truth of the fact asserted.

A PARTY MAY ASSENT BEFOREHAND to the truth of what another shall declare, and though the declaration may be not conclusive of the fact, it is competent to go to the jury.

WHERE THE PARTY AGAINST WHOM THE DECLARATION IS OFFERED is ignorant of the fact, or denies it, the foundation for the admission of the evidence fails. If the degree of his knowledge or assent is uncertain, the court may refer the decision of the preliminary facts to the jury. DECLARATIONS OF A THIRD PERSON, to which a party had agreed to submit,

are evidence, though the third person might have been called to testify. ASSUMPSIT by Charles Craig against his brother Thomas, to recover the proportion alleged to be due from him on two bonds in which they were jointly bound to their father. The bonds. were offered by the plaintiff, together with certain indorsements thereon, to prove the joint liability of the parties, and that the plaintiff had discharged the debt. The defendant objected that the bonds were admissible only to prove their joint liability, which was admitted; and that the indorsements alleged to be in the obligee's handwriting were not as good evidence as the testimony of the obligee himself. The indorsements were excluded, but the bonds were admitted because their execution had been proved, the court adding: "The circumstance of their having been delivered up to the plaintiff should have its proper weight in the decision of the cause." The defendant excepted. The plaintiff then offered testimony to prove that the defendant had said at different times that he would pay his share on the bonds if his father would say that they had been paid to him by Charles, and that on different occasions subsequently to these statements by Thomas, the father had said in the presence of the plaintiff and defendant, that he, the father, was "satisfied," as one witness testified, or that he had been paid by Charles, as two witnesses testified; and that the father handed the bonds to the plaintiff. Exceptions were taken to the admission of this

evidence.

The following errors were assigned to the opinion of the court below:

1. It was error to permit the bonds themselves to go to the jury after the indorsements were rejected.

2. It was error, in that stage of the trial, for the court to say that the circumstance of the bonds being delivered to the plaintiff below should have its proper weight in the decision of the cause."

3. It was error to au_it the evidence of the declarations of the father, though they were made in the presence of Thomas. 4. It was error to admit other evidence of the payment of the bonds than the testimony of the father himself, there being nothing to show that his attendance could not have been procured.

Jones and Rawle, for the plaintiff in error, on the first point cited Cutbush v. Gilbert, 4 Serg. & R. 551, Jordan v. Wilkins, 3 Wash. C. C. 110; Longenecker v. Hyde, 6 Binn. 1; Lessee of Cluggage v. Swan, 4 Id. 154 [5 Am. Dec. 400]; Sluby v. Champlin, 4 Johns. 461; 15 Id. 493. On the second exception they cited: Morrison v. Berke, 7 Serg. & R. 238; Doebler v. Fisher, 14 Id. 180.

Brooke and J. M. Porter, contra. In regard to the admissibility of the bonds to raise the presumption of payment, counsel cited: Tuttle v. Mayo, 7 Johns. 133; Schee v. Hassinger, 2 Binn. 331; Poth. Ev. 472 (806); Weidner v. Schweigart, 9 Serg. & R. 385; Zeigler v. Gray, 12 Id. 42; Rowson v. Adams, 17 Johus. 130; Lonsdale v. Brown, 3 Wash. C. C. 404; Sluby v. Champlin, 4 Johns. 461. And upon the correctness of the admission of the father's declarations, they cited: Morris' Lessee v. Vanderen, 1 Dall. 65; Marshall v. Sheridan, 10 Serg. & R. 268; 2 Stark. Ev. 37; Vincent v. Huff, 8 Serg. & R. 380; Sigfried v. Levan, 6 Id. 308 [9 Am. Dec. 427]; Craig v. Brown, 1 Pet. C. C. 171.

By Court, GIBSON, C. J. That the production of the debtor's own bond is evidence of satisfaction can not be controverted, because his possession of it is consistent with no other presumption. And it is evidence of satisfaction by the debtor himself, because in the usual course of transactions men pay no debts but their own. All this is strictly predicable of a security payable by but one. But the production of a bond by one of several obligors is no evidence that he has paid the whole, because being incapable of manual possession by all, the custody of it by any one in particular is either accidental or dependent on a variety of circumstances. In some cases, it may possibly be committed to the particular obligor who has paid it, as evidence against the rest; but such is not the the common course, nor does it, from its frequency, give rise to a presumption. It just as frequently happens that the bond is delivered up in the absence of the rest who have paid their proportion, to him who extinguishes the debt by payment of the residue; so that no presumption arises more favorable to the one state of things than to the other. If the original joint indebtedness had been disputed, the production of the bond would have been an indispensable part of the plaintiff's case; but as that was admitted, it is impossible not to see that the object of the evidence was to prove that the whole debt had been paid by the plaintiff; to do which the naked fact that he was in possession of the bond was plainly incompetent.

Error is assigned also in the admission of declarations by the obligee. It is answered that these were competent, because they were made, not only in the presence of the defendant, but after he had consented to be bound by whatever the obligee should say. A party is to be affected by the assertion of a third person only on the ground of assent, either tacit or express, to the truth of the fact asserted. But where it appears from the offer of the party proposing the evidence the other was entirely ignorant of the state of the fact, much more when he expressly denied its existence, the foundation of its admissibility fails. In such a case, the whole is to be rejected. But where the degree of his knowledge or assent is uncertain, the court may undoubtedly refer the decision of the preliminary facts to the jury by putting the whole to them with suitable instructions. The application of this principle to the circumstances of the present case might be attended with difficulty; haply we are relieved from it by the legal effect of one of those circumstances, which, on another ground, seems to be decisive. It was testified by two witnesses that the defendant had consented to submit the disputed fact to the dictation of the obligee, whose consequent declarations in the presence of the parties convened with a view to an amicable adjustment are the subject of this bill of exceptions. A party may undoubtedly assent beforehand to the truth of whatever another shall declare, and though a declaration on the foot of such assent be not conclusive of the fact, it is clearly competent to go to a jury. In particular circumstances, the response of a third person to whom the parties had appealed, has even been deemed conclusive: Stark. Ev., pt. 4, 42. The application of this principle to the case before us is obvious and direct. To one witness the defendant professed an entire willingness to abide by the decision of the obligee, and to another his readiness to contribute his share if the obligee would say the whole had been paid by the plaintiff. After that, can we doubt the competency of the answer thus invoked? As against himself, a party may undoubtedly give to the representation of another a credit which it would not otherwise have, as was done in Maclay's Lessee v. Work, 10 Serg. & R. 194. It is no objection here that the obligee might have been called to testify under the sanction of an oath. By adopting his answer beforehand the defendant had made it his own; and though it was open to proof of mala fides or mistake, it lay on him to furnish the evidence necessary to the purposes of contradiction or explanation. It was the business of him, therefore, and not of