158 HIGH COURT OF CHANCERY.

The questions of form being disposed of, it remains briefly
to consider the case upon its merits, as disclosed by the evi-
dence.

The issue presented by the pleading is, payment, or non pay-
ment, and the onus of that issue is upon the defendants.

Their answer, from the nature of the case, is not evidence^
because they cannot have, and do not, indeed, pretend to have,
any personal knowledge upon the subject, and speak only of their
impressions founded upon circumstances, which it is presumed
are laid before the court in the testimony.

It appears from a book indorsed "accounts of John Barnes,
surviving executor of Samuel Bond," filed by the defendants,
that John Barnes did, as guardian to Mary C. B. Barnes, his
daughter, receive her proportion of the negroes, and the pecu-
niary legacy of three thousand dollars bequeathed her by the
testator, Samuel Bond, and the defendants, therefore, as the
executors of the said Barnes must be decreed to pay that leg-
acy, unless they have succeeded in proving payment of it in
whole or in part.

[The Chancellor, after alluding to the draft for $500, men-
tioned above, said:]

It is possible, certainly, that it may have been a draft by
Compton on Barnes, and that the latter may have accepted and
paid in part discharge of the legacy; but looking to the paper
itself, and in the absence of the draft, which, if paid, ought to
have been in the possession of Barnes, it seems to me, it would
be a departure from those rules which have been established
for the ascertainment of truth, to give it the effect for which the
defendants insist.

The defendantsalso claim a credit for the sum of fifteen hun-
dred dollars, being the amount of a check by John Barnes, on
the Bank of Baltimore, dated the 25th of October, 1831, drawn
payable to William P. Compton, or bearer, and which appears,
by the evidence, to have been paid by the bank on the day fol-
lowing. It also appears, by the evidence of the bank officer,