to wit, on the fourteenth day of March, 1865, the said defendant was duly appointed and qualified as administrator of the estate of Richard Roe, late of Mt. Vernon in the county of Posey aforesaid, deceased, and on said fourteenth day of March, as such administrator, the said defendant received the sum of one thousand three hundred and ninety-four dollars and twenty-five cents belonging to the said estate, and that on the twelfth day of July, 1867, the said defendant made a final settlement report, as administrator of said decedent's estate, to the Posey Circuit Court, said report showing balance in his hands on the date aforesaid belonging to said estate of one thousand and fifty-eight dollars and fifty cents for distribution, which report was approved and received by said court and the distribution of said sum was ordered; that on the sixth day of July, 1871, a citation was issued by said court against the said defendant to show cause why he had not made a distribution of the funds in his hands belonging to the said estate, which citation was duly served on said defendant on the same day on which it was issued, but that said defendant wholly failed and refused to appear and answer said citation; that more than two years have elapsed since the final settlement of the said estate, and that no heirs of said decedent have appeared to claim the surplus of said estate or any part thereof and that the said estate has, according to the laws of the state of Indiana, escheated to the said state, wherefore the plaintiff demands that an order be issued requiring the said defendant to pay the said sum of one thousand and fifty-eight dollars and fifty cents belonging to the said decedent's estate and interest on the same from the twelfth day of July, 1867, amounting in the aggregate to the sum of one thousand seven hundred dollars over to the treasurer of Posey county and for the costs of suit.

Daniel Webster, Attorney General.

(Verification.)1

II. PROCEEDINGS BY HEIR TO RECOVER ESCHEATED PROPERTY.

Form No. 8518.2

fied, and that such successor and the prosecuting attorney had failed and refused for twelve months to institute the proper proceedings against the defendant and his sureties as provided in the statute, was overruled in the trial court and the ruling affirmed by the supreme court on appeal.

See Horner's Stat. Ind. (1896), 1143; also supra, note 1, p. 812; State v. Meyer, 63 Ind. 33.

1. For the form of verification in a particular jurisdiction consult the title VERIFICATIONS.

2. If any person appear and claim lands vested in the state within seven years after the death of the last person seised, such person (other than such as were served with scire facias or appeared to the proceeding, their heirs or

assigns) may file his petition in the circuit court having chancery jurisdiction in the county or district where such land may lie, setting forth the nature of his demand or claim and praying that the said estate may be relinquished to him. Sand. & H. Dig. Ark. (1894), § 2866. And if any person appear within seven years after the death of the intestate and claim the money paid into the treasury under this act as heir or legal representative, he may file a petition in the circuit court or court having chancery jurisdiction for the county in which the estate is situated, stating the nature of his claim and praying that such money may be paid to him, a copy of which petition shall be served on the prosecuting attorney for the circuit, who shall put in an

Pulaski Circuit Court.

John Doe, plaintiff,

against

The State of Arkansas, defendant.

Complaint in Equity.1

The plaintiff above named complains of the defendant and alleges: I. That the above plaintiff is the brother and heir at law of Charles Doe, late of Little Rock, in the county of Pulaski aforesaid, deceased. II. That on the seventeenth day of June, A. D. 1893, the aforesaid Charles Doe died intestate and possessed in fee simple of certain real estate situate in the said city of Little Rock and described as follows: (Here set out a description of the estate), the said property being of the value of ten thousand dollars.

III. That on the eighth day of July, A. D. 1897, an information was filed in the Circuit Court for the said county of Pulaski, by the prosecuting attorney for the sixth judicial circuit, wherein it was alleged that the said Charles Doe had died, intestate, possessed of certain property therein described, and leaving no heir or known kindred or widow capable of inheriting the same, and that by reason thereof the said property had escheated to the state of Arkansas.

IV. That no legal heirs entitled to the said estate appearing to answer to the said information, judgment was rendered by the aforesaid court on the twenty-third day of September, 1897, that the said estate had escheated to the state of Arkansas and that the state be seised thereof. V. That at the time of the aforesaid proceeding, the above named plaintiff was a resident of the state of California; that he had no actual notice of the pendency of said proceedings by citation, advertisement or otherwise, and that he did not appear thereto in person or by attorney.

VÍ. That the plaintiff as heir at law of the aforesaid Charles Doe is entitled to the aforesaid estate.

Wherefore he prays judgment that he be declared to be the rightful owner of all of said property and that said property be relinquished to him, and for other relief.

(Verification.)

Jeremiah Mason, Attorney for Plaintiff.

Form No. 8519.3

In the Orphans Court of Allegheny County.

In the matter of the Escheated Estate of }

Doe,

Allegheny County, ss.

answer for the same. Sand. & H. Dig. Ark. (1894), § 2864.

Similar or analogous statutes exist in the following states, to wit:

California. Code Civ. Proc. (1897),

1272.

Illinois. Starr & C. Anno. Stat. (1896), c. 49, par. 7.

Nevada. Gen. Stat. (1885), § 2996.
Oregon. - Hill's Anno. Laws (1892),

§ 3137.

1. Petition to be Brought at Law. — In Oregon, it was held that a proceeding by petition to recover money escheated to the state is one at law and not in equity. Fenstermacher v. State, 19 Oregon 504.

2. For the form of verification in a particular jurisdiction consult the title VERIFICATIONS.

3. Any person or persons interested or claiming to be interested in any

Texas. - Rev. Stat. (1895), art. 1834. property, real or personal, which shall

And now comes Charles Doe and as to the findings of the said court in the matter of the estate of John Doe, late of said Allegheny county, deceased, absolutely confirmed on the tenth day of March, A. D. 1897, whereby it was adjudged that the aforesaid John Doe died intestate possessed of certain property real and personal and leaving no known heirs or kindred or widow capable of inheriting the said property, and that the said property by reason of the premises aforesaid had escheated to the commonwealth of Pennsylvania, complaint makes that the aforesaid finding and adjudication are not true and correct, because he says that the aforesaid John Doe did leave heirs and known kindred, to wit, the said Charles Doe, a son of said decedent; that the said Charles Doe had no actual notice by citation, advertisement or otherwise of the pendency of any proceedings for escheat prior to the conclusion of the audit of accounts of the person having the escheated property in his possession, and that he did not appear in person or by attorney in said escheat proceedings, and this the said Charles Doe is ready to verify. Wherefore he prays that the aforesaid adjudication be vacated and annulled and that the proceeds of the sale of said property, or so much thereof as may remain after the payment of all legal charges, thus wrongfully paid to the said commonwealth, may be adjudged to him.

(Verification.)1

have been found to have escheated to the commonwealth, who have had no actual notice by citation, advertisement or otherwise of the pendency of any proceedings in escheat prior to the conclusion of the audit of account, of the person having the said property in his possession, and who shall not have subsequently appeared in person or by attorney in said escheat proceedings, may, at any time within three years after the filing of the final adjudication or finding in escheat or absolute confirmation thereof, traverse the same under oath or

Charles Doe.

affirmation by writing filed in the court finding the same, setting forth his, her or their interest in said property and in what particular said finding or adjudication is not true and correct, which said traverse shall be tried in the court of common pleas of the same county in which the original proceedings have been instituted. Bright. Pur. Dig. Pa. (1894), p. 802, § 27.

816

1. For forms of verification in a particular jurisdiction consult the title VERIFICATIONS.

Volume 7.

For Form of Plea in Bar in Error setting up Release of Errors, see the title ERROR, WRIT OF, ante, p. 768, Form No. 8470.

For Forms of Pleadings setting up Res Adjudicata as an Estoppel, see the title FORMER ADJUDICATION.

See also the GENERAL INDEX to this work.

I. IN GENERAL.1

817

1. Set Up in Plea or Answer.1

Form No. 8520.

In the Greene Circuit Court, September Term, 1898.

Richard Roe

ats.

John Doe.

}

Debt.

2

And the said Richard Roe, defendant in this suit, by Jeremiah Mason, his attorney, [comes and defends the wrong and injury when, etc., and]3 says that he, the said plaintiff, ought not to be admitted to say or allege that (stating the allegation in the declaration to which the estoppel relates), because he says * that (stating matter by which plaintiff is estopped), and this he, the said defendant, is ready to verify; wherefore he prays judgment if the said plaintiff ought to be admitted or received against his own acknowledgment (stating whether by deed, covenant, agreement or otherwise) to say or allege that (stating the allegation in the declaration to which the estoppel relates).

Jeremiah Mason, Attorney for Defendant.

estoppel do not appear from the anterior pleading, the plea or replication should set it forth and have the proper commencement and conclusion. I Chit. Pl. (3d Am. ed.) 575.

Confession and

Distinguished from Avoidance. Generally it is held that a plea of estoppel is as distinct from confession and avoidance as from traverse, and indeed that it is not properly a plea in bar: it neither admits nor denies the allegations of the declaration. East St. Louis v. Flannigen, 34 Ill. App. 596, Gould Pl. 39 et seq.; Stephen Pl. 219 et seq. But in Michigan (Cooley, J. dissenting), it has been held that a plea of estoppel confesses the matters alleged as the cause of action, and if the estoppel fails, judgment for the plaintiff rightly follows without the necessity of any further proceeding upon his part. Whittemore 7. Stephens, 48 Mich. 573. Consult also the title CONFESSION AND AVOIDANCE, vol. 5,

Arkansas. Gaines
Bank, 12 Ark. 773.
Connecticut. - Crandall v. Gallup, 12
Conn. 365.

North Dakota. Parliman v. Young,
2 Dak. 185.
Indiana. Fletcher v. McGill, 110
Ind. 395.

--

2 Rawle (Pa.) 357-
South Dakota.

2 Dak. 185.

Field's Estate Case,

Parliman v. Young,

Co. v.

Texas. - Texas Banking, etc.,
Hutchins, 53 Tex. 61.
West Virginia.— Vanbibber v. Beirne,
6 W. Va. 168.

1. A plea in bar may conclude the plaintiff by matter of estoppel; this, however, rarely occurs in a plea. Pleading matter of estoppel more frequently occurs in replications and subsequent proceedings. I Chit. Pl. (3d Am. ed.) 459.

Joined with General Denial. A plea of estoppel may be joined with a general denial, when the averments by way of estoppel are not inconsistent with such denial. Blodgett v. McMurtry, 39 Neb. 210. For forms of general denial see the titles ANSWERS IN Code PLEADING, Vol. 1, p. 799; PLEAS.

2. Significance of "etc." is explained in vol. 1, p. 24, note I, p. 184, note 3: vol. 2, p. 109, note 2.

3. The words in [] do not seem necessary. Bigelow Est. (4th ed.) 693, note 1 (citing 1 Chit. Pl. (3d Eng. ed.) 408). But the form given in 2 Green's New Pr. 1532, contains these words. 4. Commencement and conclusion of plea