1. The action was against an executrix, and was brought in the year 1866, upon an aceount for money had and received by her testator in the year 1860, She cannot, in her defense, take any benefit from the scaling ordinance of 1865, though she offered to plead specially that she qualified as executrix in February, 1862 ; that among the assets which came to her hands for administration were sundry promissory notes and due-bills of the present plaintiff, payable to the testator, more in amount than double the account now in suit, all of them executed between May, 1860, and October, 1861; that in April, 1863, she brought suit against him upon said notes and due-bills; that he neither pleaded his account as a set-off, nor gave her any notice of its existence; that she recovered judgment against him in said suit in January, 1864, and that he paid off and discharged the same, in the February following, with Confederate money. The voluntary reception of Confederate money by the executrix, upon a judgment in her favor against him, is no reason for scaling the account against the estate which she represents, if the account is just and owing. As it was contracted prior to June 1st, 1861, the scaling ordinance does not apply to it. For these reasons, there was no error in rejecting the proposed amendment to the pleas.
2. The executrix may support the plea of payment by the testator, without producing any direct evidence of the fact of payment, or any evidence whatever of the particular time, place or mode of payment. Presumptive evidence of the fact of payment will be sufficient, unless the presumption is rebutted. That the plaintiff, after his account against the testator became due, gave to the latter notes and due-bills, thereby acknowledging himself a debtor to the testator, would, of itself, raise a presumption that the account was discharged. This presumption would be *65strengthened if the notes and due-bills amounted to much more than the account, and if to a suit upon them by the executrix, no defense was made by set-off, or otherwise, but on the contrary judgment was suffered to go by default, and if the judgment was paid off and discharged shortly after it was rendered, the defendant therein not then giving, nor not having previously given, to the executrix any notice of the account, or made any demand upon her for payment, she having, by public advertisement as'required by law, admonished all creditors to present their claims.
3. To rebut the presumption of payment arising out of the state of facts recited in the preceding paragraph, testimony is not admissible, to the effect that whilst the suit of the executi’ix was pending, the defendant therein employed counsel to confer with her attorneys in charge of that suit, with a view to settling the case ; that said counsel called upon them and made known the counter-demand, receiving for answer that they would see about having a settlement; that the counsel heard nothing further of the case until judgment had been rendered; and that he then advised the payment of the judgment, and the bringing of suit upon the counter-demand, which advice was taken and carried out. What transpired between the counsel and his client cannot be heard to affect the executrix; and what transpired with her attorneys, in the way of a proposition for settlement and their response thereto, is equally irrelevant, it not appearing that they had any .authority from her to treat in the matter, or to liquidate claims against the estate, or to receive for her or in her stead notice of such claims.
4. The charge set forth in the 8th ground of the motion for a new trial, was delivered in response to a written request presented by the plaintiff below, the defendant in error here. The suit of 1863 was founded upon due-bills and promissory notes ; receipts were not mentioned, either in the declaration or the judgment. It was therefore an inaccuracy to speak of receipts in that connection ; there was no evidence on which to base the allusion, and why the request to charge was so framed is inexplicable. There is dan*66ger that the jury may have understood the court as intimating that the due-bills were themselves receipts, and therefore not affording in their character as due-bills any presumption of the payment of the account before they were given. This danger is increased by another part of the charge which has not been yet referred to : the court charged that promissory notes would raise a presumption of payment, but, so far as appears in the record, no like charge was given in respect to due-bills. The jury would be apt to notice the different treatment of instruments called by different names, and certainly instructions which they would probably understand to mean that, as matter of law, the giving of due-bills is not presumptive evidence of the payment of a prior account which the payee owed the maker, are erroneous.
5. Any mere presumptive evidence of payment is, of course, open to be rebutted or explained by other legal evidence, either circumstantial or direct.
6. If a debtor by account makes advances to the creditor, taking his notes and due-bills for the amounts so advanced, the parties intending to have a settlement and cancel their respective claims, but the former dies, and thereupon his representative brings suit and obtains judgment on all the notes and bills, and collects the whole amount, and the account is in fact unpaid, a suit thereon is maintainable; but the burden of rebutting any fair presumption of payment arising out of the facts and circumstances of the case must be fully met by the living party.
7.The court erred in not granting a new trial on the 3d and 8th grounds of the motion, and on the last sentence in the 5th ground. It was too sweeping to say that the fact that Meldrim allowed a judgment to be taken against him in 1864, which he paid in Confederate money, had nothing to do with the case. It is a circumstance which the jury ought to weigh in connection with the other facts tending to show that his account had been paid by the testator.
