Saam v. Saam

Per Curiam. —It is said there is no defence by an administrator de son tort to the action of a rightful representative; that is, he cannot plead payment of debts to the value; yet it seems to be agreed that he may plead the general issue, and give such payments in evidence in mitigation of damages; and that if they amount to the value, the plaintiff shall be nonsuited. The present is an action of trover against the representatives of an executor de son tort, and the defence attempted would doubtless be competent, if it were supported by competent proof. But were the books of the executor de son tort legal evidence of the existence of debts, or of their payment, or of payment in their order'? For all these must concur to entitle him to an allowance. It will not be pretended that they are proof of debts paid to third persons, or that they are, in respect to these, any more than the declarations of the party. Entries in day-books are evidence to charge a party with the price of goods sold, or of work done, but not with money paid or lent; and though the books here might have been competent to prove goods sold to the intestate, or work done for him, if that had been alleged, yet they could not be proof of payment by way of retainer, because an executor de son tort cannot retain. The form of (he entries has not been put on our paper books, and we would, were if necessary, intend it to be such as would best support the judgment; but in no form could the entries be admissible, and they were therefore properly rejected. Judgment affirmed.