Bartol, J.,
delivered (he opinion of this court.
The appellant brought this suit to recover a debt due to him from (he appellee’s intestate, upon a written contract; the appellee (who was defendant below) pleaded that his intestate, Jacob S. Marshall, in his lifetime, did agree as alleged in the declaration, and that the plaintiff is entitled to his action (hereon; “but that the deceased was, in his lifetime, largely indebted to sundry persons, in amounts greatly exceeding the assets of the estate of said deceased, which have come to the hands of the defendant, and that said assets are wholly insufficient to pay the said plaintiff’s claim, regard being had to the debts still due and owing by the said Jacob S. Marshall, deceased.” The plaintiff replied, “that the said Jacob S. Marshall, deceased, was not, in his lifetime, largely indebted to sundry persons, in amounts greatly exceeding the assets of the estate of thevdeceased, which have come, and ought to have come, to the hands of the said defendant, as administrator; and the said plaintiff says that (he said assets are sufficient to pay the claim of the said plaintiff, regard being had to the legal and proper debts still due and owing by the said Jacob S. Marshall, deceased.” The defendant joined issue on this replication. In (he course of the trial nine bills of exception were taken by the plaintiff. In passing our judgment, upon the several questions presented by (his appeal,it will not be necessary to recapitulate the facts and circumstances developed in the course of the trial. The points ruled by the circuit court are so fully and clearly stated by the' counsel in their printed briefs, and the cause has been argued and the authorities cited with so much ability and care, that we are enabled to dispose of the questions involved with great; brevity.
First Exception.- — Under the pleadings, the onus of proof of assets was on the plaintiff; we cannot, distinguish this from-the case where pleue administravit or no assets is pleaded; in such case the rule is well established, that, the burden of proof is on the plaintiff to show assets in the hands of the-defendant.
[569]*569Seco7id Exception. — We concur with the circuit court in the propriety of excluding (he evidence offered. The subscription list and good will of a printing office are not assets, under our Act of Assembly; they are of inappreciable value, and of too uncertain and contingent a nature to be the subject of appra:sement and estimation.
Third Exception. — Nothing is better settled in our State than that the accounts of an executor or administrator, passed in the orphans court, are prima facie evidence in all suits touching matters contained in them. In this case we think the evidence was properly allowed to go to the jury, with the qualifications stated by the circuit court. The objections urged by the appellant were proper grounds to be addressed to the jury in estimating the weight of the evidence, but did not justify its rejection. The accounts being merely prima facie evidence, it was competent for the appellant, to surcharge and falsify whatever may be erroneous in them, and to ask the instruction of the court to the jury in relation thereto. The single question before us, upon the third exception, is the admissibility in evidence of the accounts and proceedings of the orphans court; we are not, therefore, called upon to express any opinion upon the items of the account, or the manner in which it is stated, no point upon them having been made below.
Fourth Exception, — By the Act of 1854, ch. 86, it is made the duty of the register of wills to record all claims against a testator or intestate as they are regularly passed by the orphans court. The object of the registry is, no doubt, to give notice to the administrator and others interested, of the existence and amount of the claims preferred; it does not conclusively establish them against parties contesting them; but, the registry made under the Act, is an official record, which was admissible under the pleadings as prima facie evidence, tó show the amount of debts; leaving to the plaintiff the right to offer evidence to prove their invalidity. This is a new point in practice, and, we think, was correctly ruled by the circuit court.
[570]*570The fifth and sixth exceptions raise the question of the admissibility in evidence of two bills of sale, one from the plaintiff and J. D. Brumbaugh to John Boyd, dated the 18th day of April 1856, conveying to Boyd, for the consideration of $400, one-third of the printing establishment, with the appurtenances, and the other a bill of sale from Boyd to the defendant, dated the 6th of February 1858, conveying the same one-third portion or interest in the - printing establishment. The former of these bills of sale is referred to in the articles of agreement between the plaintiff and Jacob S. Marshall, deceased, and described as if it were intended to be a mortgage or security for the sum of $400, and one of the stipulations in the agreement, on the part of Jacob S. Marshall, was, that he would assume the payment of that sum to Boyd. Although absolute on its face, the bill of sale to Boyd was doubtless intended as a mortgage; all the parties have so treated it, and the subsequent bill of sale to the appellee was designed as a release of the mortgage. They were, in our opinion, competent and admissible evidence in the cause, to show the existence of the lien on the property, and the payment by the appellee of money due to Boyd by the intestate, under his contract with the appellant.
The seventh exception was taken to the rejection by the circuit court of certain evidence therein stated, which was offered by the appellant for the purpose of charging the appellee with a devastavit. We think the evidence was admissible. If the issue is properly made by the pleadings, there can be no doubt but that, in a suit against an executor or administrator, by a creditor of the decedent, it is competent to charge the defendant with negligence, or mal-administration of the estate, if it can be established by proof. The appellee has argued that this can be done only by an action on the testamentary bond, and referred to Hagthorp vs. Hook, 1 G. & J., 274, in support of his argument. The language referred to, when taken in connection with the context, will not bear the construction put on it by the appellee. The chancellor was speaking of the rights of an administrator de bonis non, under the Act of 1798. This is a proceeding by a [571]*571creditor under the Act of 1802, ch. 101, claiming to recover from an administrator his just proportion of the assets of the deceased, for which the administrator is, by law, responsible. If, in such a suit, no inquiry could be raised of a devastavit by the administrator; it would be difficult to perceive how the creditor could, by a proceeding at law, ever recover for a devastavit. Por he cannot sue on the bond until after judgment recovered against the administrator, and Unulla. bona returned, or other apparent insolvency or insufficiency of the person or effects of the executor or administrator,” &c., (Act of 1720, ch. 24;) and when such suit is instituted, the plaintiff would be limited, in his right of recovery, to the amount ascertained by the previous judgments to be due him out of the assets. The only question of difficulty we have had in this case, has grown out of the form of the pleadings.
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Bartol, J.,
delivered (he opinion of this court.
The appellant brought this suit to recover a debt due to him from (he appellee’s intestate, upon a written contract; the appellee (who was defendant below) pleaded that his intestate, Jacob S. Marshall, in his lifetime, did agree as alleged in the declaration, and that the plaintiff is entitled to his action (hereon; “but that the deceased was, in his lifetime, largely indebted to sundry persons, in amounts greatly exceeding the assets of the estate of said deceased, which have come to the hands of the defendant, and that said assets are wholly insufficient to pay the said plaintiff’s claim, regard being had to the debts still due and owing by the said Jacob S. Marshall, deceased.” The plaintiff replied, “that the said Jacob S. Marshall, deceased, was not, in his lifetime, largely indebted to sundry persons, in amounts greatly exceeding the assets of the estate of thevdeceased, which have come, and ought to have come, to the hands of the said defendant, as administrator; and the said plaintiff says that (he said assets are sufficient to pay the claim of the said plaintiff, regard being had to the legal and proper debts still due and owing by the said Jacob S. Marshall, deceased.” The defendant joined issue on this replication. In (he course of the trial nine bills of exception were taken by the plaintiff. In passing our judgment, upon the several questions presented by (his appeal,it will not be necessary to recapitulate the facts and circumstances developed in the course of the trial. The points ruled by the circuit court are so fully and clearly stated by the' counsel in their printed briefs, and the cause has been argued and the authorities cited with so much ability and care, that we are enabled to dispose of the questions involved with great; brevity.
First Exception.- — Under the pleadings, the onus of proof of assets was on the plaintiff; we cannot, distinguish this from-the case where pleue administravit or no assets is pleaded; in such case the rule is well established, that, the burden of proof is on the plaintiff to show assets in the hands of the-defendant.
[569]*569Seco7id Exception. — We concur with the circuit court in the propriety of excluding (he evidence offered. The subscription list and good will of a printing office are not assets, under our Act of Assembly; they are of inappreciable value, and of too uncertain and contingent a nature to be the subject of appra:sement and estimation.
Third Exception. — Nothing is better settled in our State than that the accounts of an executor or administrator, passed in the orphans court, are prima facie evidence in all suits touching matters contained in them. In this case we think the evidence was properly allowed to go to the jury, with the qualifications stated by the circuit court. The objections urged by the appellant were proper grounds to be addressed to the jury in estimating the weight of the evidence, but did not justify its rejection. The accounts being merely prima facie evidence, it was competent for the appellant, to surcharge and falsify whatever may be erroneous in them, and to ask the instruction of the court to the jury in relation thereto. The single question before us, upon the third exception, is the admissibility in evidence of the accounts and proceedings of the orphans court; we are not, therefore, called upon to express any opinion upon the items of the account, or the manner in which it is stated, no point upon them having been made below.
Fourth Exception, — By the Act of 1854, ch. 86, it is made the duty of the register of wills to record all claims against a testator or intestate as they are regularly passed by the orphans court. The object of the registry is, no doubt, to give notice to the administrator and others interested, of the existence and amount of the claims preferred; it does not conclusively establish them against parties contesting them; but, the registry made under the Act, is an official record, which was admissible under the pleadings as prima facie evidence, tó show the amount of debts; leaving to the plaintiff the right to offer evidence to prove their invalidity. This is a new point in practice, and, we think, was correctly ruled by the circuit court.
[570]*570The fifth and sixth exceptions raise the question of the admissibility in evidence of two bills of sale, one from the plaintiff and J. D. Brumbaugh to John Boyd, dated the 18th day of April 1856, conveying to Boyd, for the consideration of $400, one-third of the printing establishment, with the appurtenances, and the other a bill of sale from Boyd to the defendant, dated the 6th of February 1858, conveying the same one-third portion or interest in the - printing establishment. The former of these bills of sale is referred to in the articles of agreement between the plaintiff and Jacob S. Marshall, deceased, and described as if it were intended to be a mortgage or security for the sum of $400, and one of the stipulations in the agreement, on the part of Jacob S. Marshall, was, that he would assume the payment of that sum to Boyd. Although absolute on its face, the bill of sale to Boyd was doubtless intended as a mortgage; all the parties have so treated it, and the subsequent bill of sale to the appellee was designed as a release of the mortgage. They were, in our opinion, competent and admissible evidence in the cause, to show the existence of the lien on the property, and the payment by the appellee of money due to Boyd by the intestate, under his contract with the appellant.
The seventh exception was taken to the rejection by the circuit court of certain evidence therein stated, which was offered by the appellant for the purpose of charging the appellee with a devastavit. We think the evidence was admissible. If the issue is properly made by the pleadings, there can be no doubt but that, in a suit against an executor or administrator, by a creditor of the decedent, it is competent to charge the defendant with negligence, or mal-administration of the estate, if it can be established by proof. The appellee has argued that this can be done only by an action on the testamentary bond, and referred to Hagthorp vs. Hook, 1 G. & J., 274, in support of his argument. The language referred to, when taken in connection with the context, will not bear the construction put on it by the appellee. The chancellor was speaking of the rights of an administrator de bonis non, under the Act of 1798. This is a proceeding by a [571]*571creditor under the Act of 1802, ch. 101, claiming to recover from an administrator his just proportion of the assets of the deceased, for which the administrator is, by law, responsible. If, in such a suit, no inquiry could be raised of a devastavit by the administrator; it would be difficult to perceive how the creditor could, by a proceeding at law, ever recover for a devastavit. Por he cannot sue on the bond until after judgment recovered against the administrator, and Unulla. bona returned, or other apparent insolvency or insufficiency of the person or effects of the executor or administrator,” &c., (Act of 1720, ch. 24;) and when such suit is instituted, the plaintiff would be limited, in his right of recovery, to the amount ascertained by the previous judgments to be due him out of the assets. The only question of difficulty we have had in this case, has grown out of the form of the pleadings. But, in our opinion, the replication charging the defendant with assets received, and which ought to have come to his hands, is sufficient to open the inquiry presented under the seventh exception.
The eighth exception brings before us the three prayers offered by the appellant, and rejected by the circuit court. What has been said, in disposing of the seventh exception, is applicable to the second and third prayers, which, we think, for the reasons already stated, ought to have been granted. They seek to charge the appellee with negligence in conducting the administration, which was within the issue made by the pleadings. The same reasoning will apply to the first prayer, which ought to have been granted. Any sperate debts due the deceased, which may have been lost by the negligence of the defendant, in failing to collect them, he is chargeable with as assets. As this case will be sent back under procedendo, we deem it proper to say, that the rebutting evidence offered by the defendant, and contained in his exception, would be admissible.
Ninth Exception. — In our opinion, the circuit court, erred in granting the defendant’s prayer contained in this excepexception. Property of the intestate remaining in the hands of the defendant, in specie, is assets for the purposes of this [572]*572suit, and to be estimated in ascertaining the amount which the plaintiff is entitled to recover, unless the defendant proves that they remain unsold without his fault or negligence.
(Decided November 4th, 1861.)
We affirm the ruling of the circuit court on the first, second, third, fourth, fifth and sixth exceptions; but reverse on the seventh, eighth and ninth exceptions.
Judgment reversed and procedendo awarded.