By the Court
Jenkins, J.,
delivering the opinion.
The first exception appearing in this record is to the exclusion, by the Court below, of the testimony of the witness Sears, offered by the plaintiff. His evidence is certainly not very clear or very definite; but it does throw some light upon a transaction now enveloped in obscurity, which should have appeared, clearly and fully, just as it occurred in the returns of the defendant as administrator, to the Ordinary. It may be well to say here, at once, that the peculiar circumstances of this case seem to demand a relaxation of the rules of evidence, or rather, that conformity to the rule allowing the admission of the best evidence of which the nature of the case admits, inevitably lets in such as is not of a very satisfactory or conclusive character. It is now more than forty years since the transactions brought under investigation had their inception. The plaintiff was then a mere child, quite incapable of comprehending such of them as may have transpired in his immediate presence, and scarcely able to remember what may have been witnessed, but noteomprehended. Many persons who were either parties to, or witnesses of, the transactions have passed away, whilst the memory of others has lost its grasp of the facts. Charity, perhaps, requires us to concede that much of the vagueness and uncertainty of defendant’s answer is attributable to his own forgetfulness of things done by himself, after the lapse of so many years. We cannot, however, indulge a charity so abounding, as to excuse him for having failed to perform a duty required by the law of the land, in terms so simple as to be easily com[99]*99prehended by the poorest capacity—the duty of making to the proper authority, to be recorded and'preserved as a perpetual testimony thereof, annual returns of his receipts and expenditures as executor. When we come, in a more appropriate connection, to consider that point, it will be seen how that duty has been performed. It is enough to say, here, that it has in part been so done, and in part so omitted, as to envelop the history of this case in a cloud of obscurity, and as to render the administration of full and equal justice a hopeless attempt. This malfeasance and non-feasance, on his part, imposes on the Court charged with the quest after truth, the necessity of admitting every thing not in absolute violation of the rules of evidence that may tend, even remotely, to elucidate the case.
Of this character is the testimony of Sears. It gives some clue to the amount of the debt due the estate of defendant’s intestate, to which he testifies, and to the practicability of realizing it by the exercise of due diligence. It does contain statements which a jury might and should well and carefully consider, in the absence of clearer proof, which it was the bounden duty of defendant to furnish. To exclude it from them, therefore, was error. So of the testimony of Bailey, the rejection of which furnishes the ground of the second exception. It tends to show the pecuniary condition of the defendant at the time he entered upon this administration— its apparent improvement shortly afterwards—his more liberal style of living, and freer expenditure, and his probable sources of revenue. It has a bearing upon the question raised by a charge in the bill, that he converted to his own use the asset's of the estate, which he is now called upon to account for, and should have been admitted. We are coñstrained to put our judgment upon the exception to the rejection of Fuqua’s testimony, hypothetically. This witness testifies that he “ was-acquainted with all those men ; witness was a merchant at the time, and sold them goods on time, and •collected the amounts. They were all considered responsible for their contracts.” Who “those men” were, what “the time,” and what their relation to the estate, neither appears [100]*100from the witness’ answers nor the record. Doubtless the names of “ those men,” and “ that time,” are disclosed in the question he is answering, but the questions in all cases of depositions, taken under commission, are omitted in the brief of evidence. We can, then, only say, that if upon reference to the question or questions which elicited the answer above quoted, the names of persons are disclosed who are debtors of this estate, and whose debts were returned by the defendant as desperate, or were not accounted for, and if “ that time,” of which he speaks, should fall within the range of defendant’s administration, the rejection of that testimony was error. So much of Fuqua’s evidence as relates to the general impression that defendant was administering the estate badly, and that his conduct was not that of an economical executor, was properly rejected. The testimony of the witness Thomas, and the transcripts from the dockets, as testified to, and as certified by him, were, we think, erroneously ruled out by the Court, because they appear to furnish the best evidence the nature of the case, as exhibited by him, admitted of. The testimony of this witness, we think, brings the transcripts rejected within the operation of the Act of 21st Dec., 1819, Cobb’s Digest, 272, and the Act of 21st Dec., 1830, Cobb’s Digest, 273.
The testimony of the witness Hair (without other evidence showing that he had been a debtor of this estate,) was properly rejected, because he testifies that lie owed the estate of Benj. Smith nothing, and that there ivas residing in the county of Laurens when he left there, another William Hair, or Hare.
2. The next exception assigns error in the refusal of the Court to charge, as requested by plaintiff’s counsel, “ that, if an executor sell the effects, assets, or dioses in action of the estate he administers, without an order of Court, or other lawful authority, at private sale and at a reduced price, he is chargeable with their nominal value.” We do not readily understand what the nominal value of any of those subjects of administration is, except choses in action. We presume, the amount of indebtedness appearing upon the face of a chose in [101]*101action, is thé “ nominal value ” referred to- But what is the nominal value of a mule, of a bolt of calico, or of a bedstead ? The true rule in the case made in the request, is that he is liable for the real value, if that can be ascertained, and is greater than the sum for which the thing was sold. In the case of a chose in action, if the real value cannot be ascertained, then the liability would be either the amount of sale, or the sum apparent upon the face of it, as the one or the other might be the larger sum.
3. The next exception assigns as error, the following charge given by the Court, at the request of the defendant’s counsel, viz: “ That the inventory of the choses in action, promissory notes, and books of account of Benj. Smith, deceased, is merely prima fade evidence to charge the executor with them as assets-; it may not be sufficient of itself, but that the evidence ought to go further and show the money to have been collected or collectable.”
This chal’ge is obnoxious to the objection of inconsistency. The first clause assigns to the inventory the character of prima fade evidence, to charge the executor, whilst the latter clause conveys the idea that it is not sufficient of itself, and that it is incumbent on the party seeking to charge the executor, to go further, to offer more stringent proof. A7e understand the effect of prima facie
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By the Court
Jenkins, J.,
delivering the opinion.
The first exception appearing in this record is to the exclusion, by the Court below, of the testimony of the witness Sears, offered by the plaintiff. His evidence is certainly not very clear or very definite; but it does throw some light upon a transaction now enveloped in obscurity, which should have appeared, clearly and fully, just as it occurred in the returns of the defendant as administrator, to the Ordinary. It may be well to say here, at once, that the peculiar circumstances of this case seem to demand a relaxation of the rules of evidence, or rather, that conformity to the rule allowing the admission of the best evidence of which the nature of the case admits, inevitably lets in such as is not of a very satisfactory or conclusive character. It is now more than forty years since the transactions brought under investigation had their inception. The plaintiff was then a mere child, quite incapable of comprehending such of them as may have transpired in his immediate presence, and scarcely able to remember what may have been witnessed, but noteomprehended. Many persons who were either parties to, or witnesses of, the transactions have passed away, whilst the memory of others has lost its grasp of the facts. Charity, perhaps, requires us to concede that much of the vagueness and uncertainty of defendant’s answer is attributable to his own forgetfulness of things done by himself, after the lapse of so many years. We cannot, however, indulge a charity so abounding, as to excuse him for having failed to perform a duty required by the law of the land, in terms so simple as to be easily com[99]*99prehended by the poorest capacity—the duty of making to the proper authority, to be recorded and'preserved as a perpetual testimony thereof, annual returns of his receipts and expenditures as executor. When we come, in a more appropriate connection, to consider that point, it will be seen how that duty has been performed. It is enough to say, here, that it has in part been so done, and in part so omitted, as to envelop the history of this case in a cloud of obscurity, and as to render the administration of full and equal justice a hopeless attempt. This malfeasance and non-feasance, on his part, imposes on the Court charged with the quest after truth, the necessity of admitting every thing not in absolute violation of the rules of evidence that may tend, even remotely, to elucidate the case.
Of this character is the testimony of Sears. It gives some clue to the amount of the debt due the estate of defendant’s intestate, to which he testifies, and to the practicability of realizing it by the exercise of due diligence. It does contain statements which a jury might and should well and carefully consider, in the absence of clearer proof, which it was the bounden duty of defendant to furnish. To exclude it from them, therefore, was error. So of the testimony of Bailey, the rejection of which furnishes the ground of the second exception. It tends to show the pecuniary condition of the defendant at the time he entered upon this administration— its apparent improvement shortly afterwards—his more liberal style of living, and freer expenditure, and his probable sources of revenue. It has a bearing upon the question raised by a charge in the bill, that he converted to his own use the asset's of the estate, which he is now called upon to account for, and should have been admitted. We are coñstrained to put our judgment upon the exception to the rejection of Fuqua’s testimony, hypothetically. This witness testifies that he “ was-acquainted with all those men ; witness was a merchant at the time, and sold them goods on time, and •collected the amounts. They were all considered responsible for their contracts.” Who “those men” were, what “the time,” and what their relation to the estate, neither appears [100]*100from the witness’ answers nor the record. Doubtless the names of “ those men,” and “ that time,” are disclosed in the question he is answering, but the questions in all cases of depositions, taken under commission, are omitted in the brief of evidence. We can, then, only say, that if upon reference to the question or questions which elicited the answer above quoted, the names of persons are disclosed who are debtors of this estate, and whose debts were returned by the defendant as desperate, or were not accounted for, and if “ that time,” of which he speaks, should fall within the range of defendant’s administration, the rejection of that testimony was error. So much of Fuqua’s evidence as relates to the general impression that defendant was administering the estate badly, and that his conduct was not that of an economical executor, was properly rejected. The testimony of the witness Thomas, and the transcripts from the dockets, as testified to, and as certified by him, were, we think, erroneously ruled out by the Court, because they appear to furnish the best evidence the nature of the case, as exhibited by him, admitted of. The testimony of this witness, we think, brings the transcripts rejected within the operation of the Act of 21st Dec., 1819, Cobb’s Digest, 272, and the Act of 21st Dec., 1830, Cobb’s Digest, 273.
The testimony of the witness Hair (without other evidence showing that he had been a debtor of this estate,) was properly rejected, because he testifies that lie owed the estate of Benj. Smith nothing, and that there ivas residing in the county of Laurens when he left there, another William Hair, or Hare.
2. The next exception assigns error in the refusal of the Court to charge, as requested by plaintiff’s counsel, “ that, if an executor sell the effects, assets, or dioses in action of the estate he administers, without an order of Court, or other lawful authority, at private sale and at a reduced price, he is chargeable with their nominal value.” We do not readily understand what the nominal value of any of those subjects of administration is, except choses in action. We presume, the amount of indebtedness appearing upon the face of a chose in [101]*101action, is thé “ nominal value ” referred to- But what is the nominal value of a mule, of a bolt of calico, or of a bedstead ? The true rule in the case made in the request, is that he is liable for the real value, if that can be ascertained, and is greater than the sum for which the thing was sold. In the case of a chose in action, if the real value cannot be ascertained, then the liability would be either the amount of sale, or the sum apparent upon the face of it, as the one or the other might be the larger sum.
3. The next exception assigns as error, the following charge given by the Court, at the request of the defendant’s counsel, viz: “ That the inventory of the choses in action, promissory notes, and books of account of Benj. Smith, deceased, is merely prima fade evidence to charge the executor with them as assets-; it may not be sufficient of itself, but that the evidence ought to go further and show the money to have been collected or collectable.”
This chal’ge is obnoxious to the objection of inconsistency. The first clause assigns to the inventory the character of prima fade evidence, to charge the executor, whilst the latter clause conveys the idea that it is not sufficient of itself, and that it is incumbent on the party seeking to charge the executor, to go further, to offer more stringent proof. A7e understand the effect of prima facie evidence to be,- to shift the onus—to establish the fact in issue, unless rebutted by the party sought to be affected by it. But to say of evidence that is insufficient, that the party adducing it should have produced more, is to say that it does not shift the onus—that it is not prima fade evidence of the fact in issue. The instruction given the jury “that it was necessary for the complainant to show that the money was collected or collectable,” was particularly objectionable, as applied to this case, and this is the form given to it—a rule to be applied to this estate—not a general rule of law. Conceding to the Court below, for argument, that the general rule is as declared in the charge, we should hold that this case is an exception. Looking to the inventory, as exhibited in the transcript, we find no schedule setting out the names of debtors, and the [102]*102sum due by each, and the class to which the debt belonged. But at the foot of the inventory and appraisement of chattels, are two items, one of which specifies the aggregate of debts by promissory notes, and the other the aggregate of debts in open account. The inventory does not exhibit the name of any debtor, nor the amount of any debt. When this plaintiff arrived at years of maturity, he could not, by recourse to the records of the Ordinary, acquire any specific information whatever on these points from the inventory—and now, that he resorts to the conscience of the defendant, he is not assisted. There is no inventory, there are no uncollected notes produced, no schedule of them exhibited, no books of account produced. The annual returns show no money collected. Under this state of things, with these shamefully meagre returns, how is this plaintiff to go back to the days of his early childhood and “show that the money was collected, or collectable”? There was error in this charge.
4. Again, the plaintiff in error excepts to the charge of the Court, given at the request of defendant’s counsel, in the language following: “ That the returns of the defendant having been allowed by the Court of Ordinary of Laurens county, and adjudged by a Court of competent jurisdiction, are prima fade evidence of the correctness of the returns used, will be conclusive, unless reversed or impeached for fraud or other cause.”
This is, undoubtedly, the general rule of law, as applied to returns made in conformity with law, and upon the face of which there is no reason apparent for suspecting that they are illegal or fraudulent. If, for example, the Ordinary should pass and record accounts not verified, or containing a return of large expenditures wholly unsustained by vouchers, surely such returns would not make a prima fade case for the executor or administrator returning them. By the Act of 18th Dec., 1792, Cobb’s Dig., 306, executors and administrators are required, annually, to render to the Register of Probates, (Court of Ordinary,) a just and true account, upon oath, of the receipts and expenditures of such estates, the preceding year. By reference to the returns, as [103]*103certified and exhibited in evidence, we find that, having qualified as executor, in the early part of the year 1819, the defendant made, after the return of the inventory and appraisement, but six returns, as follows: Three returns of expenditures, made severally in the years 1820, 1824 and 1828. A return of sales made in 1821, on twelve months’ credit, not verified, and the proceeds never brought into his annual returns. A return of a cash sale, made in 1823, not verified, amounting to $80 25, which is the sole acknowledgment, in all' his returns, from first to last, of cash received. Lastly, a return, made 5th September, 1825, of desperate debts.
Thus, it is seen, there are but three returns, strictly of the description denominated “ annual,” with an interval between the first and the last of eight years. He did not, then, make annual returns of receipts and expenditures. Again, it appears that in neither of these three returns is there acknowledged the receipt of one cent of money. Whilst there are three returns of expenditures, there is no return of receipts, save the unverified account of a cash sale, above mentioned, which, for lack of verification, is illegal. We do not question, that in the course of a long administration, there may be one or more returns, entirely true and legal, showing only expenditures. But what shall be said of an administration of an estate, the inventory of which shows personalty, amounting to $17,344 99, (besides several hundred acres of land,) commenced more than forty years since, never closed to this day—in which there have been but three returns of expenditures and none of receipts.
■ Again, the inventory shows- that he rendered to the appraisers an aggregate of debts due to the estate, of $9,621-97. More than six years after the date of this inventory, (a-lapse of time sufficient for the collection of all collectable debts, and for the bar of the statute of limitations to have attached to all debts due at that time,) he made a return of desperate debts, amounting to $2,123 98. What has become of the remainder of $7,500 ? The presumption of law is that this remainder was collected; but when collected, how [104]*104much interest collected upon it? Why not returned as collected ? It is impossible to resist the conclusion, that these returns are illegal—are fraudulent. They stand before the Court self-impeached. They make no prima faoie case for the executor, they are to be taken most strongly against him; they call for the opening widely of the door for the admission of evidence in behalf of the plaintiff, and the stringent administration of the law against the defendant. We take it for granted that the attention of his Honor, the Judge of the Court below, was not called to the character of these returns, and that, in the absence of such a call, and in the hurry of a nisi prius trial, he had not (enveloped as they are in a terribly voluminous record,) found opportunity to scrutinize them. With more enlarged privileges of time and opportunity, we have felt ourselves severely tasked by the investigation, and doubt not that, upon careful scrutiny, he will arrive at our conclusion. At all events, we are constrained to hold that there was error in this charge, as applied to these returns.
5. Error is further alleged against the following charge: “That the return of certain notes and accounts, as desperate, cannot be impeached by evidence simply of the solvency of the debtors; that complainant must not only show the debts to have been solvent but collectable; and that without such evidence, the judgment of the Court of Ordinary allowing said accounts and notes as desperate, is conclusive.”
We think this charge goes rather far in favor of the defendant. It should, on this point, have been to this effect: “ The judgment of the Court of Ordinary, allowing a schedule of desperate debts, is prima facie evidence in favor of the defendant, and of course conclusive, unless rebutted. But it is competent for the plaintiff to prove in rebuttal that the debtors named in the schedule were solvent, and that, by the use of due diligence, payment might have been enforced; that such evidence, if credible, was sufficient to shift the onus, and require the defendant to show why these debts were not collected; and that it was the province of the jury to determine, from all the evidence, whether or not the defend[105]*105ant should be charged with any debts standing in that class. If there be satisfactory evidence of the solvency of a debtor, during several consecutive .years, a debt due by him in the first of those years, can scarcely be desperate. Such evidence should have been received, and the question of liability referred to the jury.
X For the reasons assigned, we have no hesitation in reversing the judgment of the Court below, and sending the case back for a rehearing.
Judgment reversed.