(after stating the case as above). There passed into the hands of Corpening, by virtue of his office, in October, 1855, the sum of money mentioned, and he was *333by the decree directed to lend it out on security until the succeeding term, but it does not appear that any such loan was made. lie received from another purchaser, Spoke, on. April 27th, 1858, the sum of $76, which on the next day he paid over to one Burgin, guardian- of Mary Curtis, as the order apportioning the fund required; and again he paid the plaintiff, E. B. Kerlee, her succeeding guardian, $20, on November 3d, 1859; from what source received does not appear.. There is no controversy in regard to these funds, since the-referee only charges the clerk and master with his collection from Hemphill, and the facts are adverted to in connection with the long silence that has since intervened up to the institution 'of the present action, in September, 1880.
Now7', the fund is traced into the clerk’s hands, and in no-manner is he acquitted of his direct responsibility to those-entitled to it. If he misappropriated the money, or failed to lend it, and collect and pay over the annual interest, it. would be a breach of his bond, and subject him to an action. It is from this long delay, and in explanation of it, that the-statute deduces the inference of payment or satisfaction, and requires affirmative proof of non-payment. None such has, in this, been offered. The presumption, therefore, must prevail.
But it is argued that no such defence has been set up specifically, and this is true as to every defence, since no answer has been filed, unless what is termed a demurrer be so considered, and this it does not purport to be. But the consent reference, signed by counsel and “affirmed” by the Judge, sends the whole subject of controversy to the referee, and specially to determine what is due from the testator’s estate-to the plaintiffs, and payments partial or in full must be inquired into, to ascertain the result. The defendant has the same right to contest as the plaintiffs to establish their claims, and to avail themselves of the rules of evidence ap*334plicable thereto. We concur, consequently, in the ruling of the Judge and his disposal of the cause.
We have proceeded to consider the appeal upon its merits because our conclusion is against the plaintiffs. Had our opinion been different, we should have paused in making a ■decision until the parties interested in the fund are introduced into the cause. But three only of the plaintiffs’ names are found in the pleadings, the plaintiff Kerlee and wife in their right, and himself, as administrator of Mary Curtis, and the numerous others are described, without naming them,.as “heirs at law of Moses Curtis, deceased,” and this ■cannot be tolerated. Who are the heirs at law of a deceased person, is a question of law. Bradford v. Erwin, 12 Ired., 291; and the defect, after being pointed out in the demurrer, has not been removed. Persons who demand money from others, must appear in the record in proper person, so that the defendant may know the money will go into the hands of rightful claimants, and he not be exposed to a suit for the same from others. When the summons was issued there were no named plaintiffs, and only the comprehensive term, “heirs of Moses Curtis,” was used to cover all who might have that relation toward the deceased, while these were designated by name when the complaint was filed.
There is no error, and the judgment-below is affirmed.
No error. Affirmed.