#### Wilcox v. Pearman.

January, 1838,

Richmond.

(Absent Brooku, J.)

Assignments — Evidence against Assignee — Receipt of Assignor — Case at Bar. — A legatee assigns his claim for the legacy by deed; the assignee brings suit for it against the executor and his surety, who produce in their defence, a receipt in full, signed by the legatee and bearing date before the deed of assignment: Huno, such a receipt is no evidence against the assignee, without proof, that it was really executed before the assignment; nor is the date to be taken as prima facie true.

Same — Same—Acknowledgment of Payment by Assignor.* — The acknowledgment, written or verbal, of the assignor of a claim, that the same has been paid to him, is no proof against the assignee, unless it be proved to have been made before the assignment; and the burden of proof lies on the debtor.

Jeffrey Gilliam, late of Charles City, died in 1816, and by his will directed his whole estate, which was all personal, to be *sold;*and after directing that his debts and some small legacies should be paid out of the proceeds of the sale, he bequeathed the residue to his two sons, Edward and William, to be equally divided between *them ; and he appointed his son Thomas his executor. Thomas Gilliam proved the will, and qualified as executor, in the county court of Charles City, in May 1816; and Hamlin Wilcox was his surety in his execu- : torial bond.

Edward Gilliam, one of the testator’s residuary legatees, by deed, dated the 17th Jan*62uary 1820, sold and assigned all his interest in the testator’s estate to Michael Pearman.

Pearman exhibited his bill in the superiour court of chancery of Williamsburg, against Thomas Gilliam the executofi, who was now a resident of the state of Tennessee, -Wilcox the surety in his executorial bond, and the administrator of the legatee William Gilliam who was dead, — setting forth the will of Jeffrey Gilliam, the qualification of the executor, and the assig-nment of Edward Gilliam’s share to him ; charging, that the executor had never settled his account of administration ; and praying an account thereof, and a decree for his assignor’s share.

Thomas Gilliam, the executor, never appeared: he was regularly proceeded against by publication, and the bill was taken pro confesso as to him.

His surety, the defendant Wilcox, put in an answer, in which he stated, that Thomas Gilliam, the executor, had, before the date of the deed of assignment which was executed by Edward Gilliam to the plaintiff, and under which he claimed, paid to Edward Gilliam the sum of 385 dollars 29 cents, upon condition that he. should refund any excess of that sum beyond what should appear due to him as a legatee of his father on a fair settlement of accounts ; and that that sum did in truth exceed the utmost that could be due to Edward.

The only question in the cause was, Whether the payment of 385 dollars 29 cents had been in fact made by Thomas Gilliam, the executor, to his brother Edward, *the legatee? and made before Edward’s deed of assignment to Pear-man of the 17th January 1820 ?

To prove the affirmative, Wilcox produced the receipt for the payment, which his principal had put into his hands. The receipt was in these words : “August 9th 1819. Received of Thomas Gilliam executor of Jeffrey Gilliam deceased, 385 dollars and 29 cents, on account of the legacy bequeathed to me by the last will and testament of my father Jeffrey Gilliam. It is understood and agreed by the parties here mentioned, that should the above sum of 385 dollars 29 cents, on a fair settlement of said estate, be more than my proportion, the overplus to be returned by me, and on the contrary to receive any additional amount which may be due thereon. (Signed) Edward Gilliam.” The signature of Edward was proved, and indeed admitted to be genuine. And this paper was the only evidence adduced of alleged payment.

' On the other hand, it was proved, that on the 9th August 1819, the date o-f the receipt, Thomas Gilliam the executor was in the state of Tennessee, and Edward Gilliam the legatee was in Virginia; and no attempt was made to prove, that the money was remitted by Thomas Gilliam to Edward, though, had such a remitment been really made, the fact of the remitment, and the manner of it, would probably have been easily susceptible of proof: there was, indeed, no pretence that the money had been remitted from Tennessee to Virginia. It was proved, that Thomas Gilliam left Virginia in July 1818, and returned in the spring of the year 1820 ; and then, was without money to pay a just debt which he owed to a brother in law. And Edward Gilliam himself being examined as a witness, deposed, that when his brother Thomas returned to Virginia in 1820, he told him, that he .had sold his interest in his father’s estate to Pearman ; at which Thomas was very much displeased, and insisted, that Edward should nevertheless * give him a receipt in full for his share of the estate ; that Edward resisted this demand at first, but at length yielded to the importunity and the influence of his brother, and signed the receipt; that the receipt was in fact given by him in 1820, some months after his assignment to Pearman, and was antedated ; and that Thomas had never paid him any thing.

.The court ordered an account of the executor’s administration of the estate of-the testator Jeffrey Gilliam ; and, in , stating the account, the commissioner wholly disregarded the alleged payment by the executor to the legatee Edward Gilliam, of 385 dollars 29 cents. His report shewed a balance of 293 dollars with interest, &c. due from the executor to Pearman as assignee of the legatee Edward Gilliam j and a balance of 251 dollars with interest &c. due to the administrator of the other legatee William Gilliam. And the court approving the report, decreed, that Thomas Gilliam the executor, and the defendant Wilcox his surety, should pay those sums to the plaintiff, and to the administrator of William Gilliam, respectively, upon those parties respectively, giving the executor the usual refunding bonds. Wilcox appealed from the decree to this court.

Johnson, for the appellant.

Stanard, for the appellee.

*

 Assignments— Evidence against the Assignee — 1 Acknowledgment of Payment by Assignor. — The ac-1 knowleagment of an assignor that he has been paid 1 his debt is no evidence against the assignee unless it was made anterior to the assignment; and this ’ is equally true whether his acknowledgment is oral ; or written. And further, the burden is upon the ¡ debtor to prove that the acknowledgment was made anterior to the assignment, Ginter v. Breeden, 90 Va. 570, 19 S. E. Rep. 656, citing principal case. To i the same effect, see principal case also cited in ( Pettit v. Jennings, 2 Rob. 676, 880, and *foot-note.*See, i i in accord, *foot-note*to Smith v. Betty, 11 Gratt. 752. 1 and cases there cited.

TUCKER, P.

I am of opinion, that the

decree should be affirmed. There is but one point on which I deem it necessary to make a remark: it respects Edward Gilliam’s receipt for his legacy. I think it no evidence against Pearman his assignee, unless it is proved to have been given before the assignment. It cannot prove itself, neither its genuineness nor the truth of the date. The acknowledgments of an assignor that he has been paid his debt are no evidence against the assignee, unless they were made anteriour to the assignment; and *this is equally true, whether his acknowledgment is oral or written. Now a receipt is nothing but a written acknowledgment, and is not evidence against the assignee, unless it is proved to have been given anteriour to the assignment. The proof of this is upon the debtor. It was argued, that the date of the receipt must be taken as the true date, until the contrary is proved. I cannot think so. If it were so, every such paper would prove itself; which cannot be. Moreover, the parties to it know truly when it was given ; the assignee cannot know. The parties to it must, therefore, prove it; since otherwise, however false and fraudulent it be, it will prove itself to be true, without the possibility of contradiction. Now, in this-case, if we take the testimony of Edward Gilliam, the date is proved to be false ; and *63even if we reject it, there is no proof that the date is true. Of course there is no proof, that the acknowledgment of the receipt of the'money was made anteriour to the assignment, and it was therefore no evidence against the assignee. Without it, there is no difficulty in affirming the decree.

The other judges concurred. Decree affirmed.