#### WILLIAM HUNTINGDON *vs.*GEORGE W. SPEARS.

June 1843

Where an administrator or executor in his inventory has returned a debt “desperate,” it is not necessary for a creditor, suing such administrator or executor, to shew that the debt was due to the testator. It is sufficient for him to prove that the debtor was solvent, in order to throw upon the administrator or executor the burden of shewing, that the debt could not he collected.

Appeal from the Superior Court of Law of Cabarrus county, at Spring Term, 1843, his Honor Judge Dick presiding-

This was an action of assumpsit against the defendant as the administrator of one Dr. Negle. The defendant pleaded fully administered and no assets, and on the trial relied on these pleas. The plaintiff offered in evidence the inventory Sled by the defendant, from which it appeared that he had returned sundry book accounts against a number of persons, amounting to several hundred dollars, as belonging to the estate of his intestate, and stated that all the said accounts or charges were “desperate.” The plaintiff then proved that several persons charged on the books of the intestate and" so returned in the inventory of the defendant, were solvent at the time the inventory was returned, and remained solvent and able to pay the charges against them at *the*present time. It did not appear that the intestate left any other estate except the accounts above mentioned. The plaintiff contended that he was entitled to recover, by shewing that the persons charged on the books of the intestate were solvent and able to pay at the time the inventory was returned, without shewing that the debts were due and had been or might have been collected by the administrator. The court charged the jury, that, as the administrator had returned all *451the accounts without distinction as desperate, it was incumbent on the plaintiff, not only to shew the solvency of the persons charged, but likewise to shew that the debts were due to the estate of the intestate, at the return of the inventory by the administrator, and had been or might have been by him collected. The jury under this charge found a ver- • diet for the defendant. A new trial having been moved for and refused, and judgment rendered according according to the verdict, the plaintiff appealed to the Supreme Court.

*Caldwell*for the plaintiff.

*Alexander*and *Osborne*for the defendant.

Ruffin, C. J..

It is not stated in the case, what length of time elapsed between the administration of the defendant and the making of his inventory, and the commencement of the action by the plaintiff; and wesupgoseit was not thought material to the point ruled on the trial. — ■ We assume, therefore, that the period was sufficient to charge the administrator with the debts as assets come to hand, if he had returned them as good debts; and the only question intended to be presented, was upon the effect of the return, that the debts were desperate. Upon that question we must acknowledge, that the rule laid down in the Superior Court is new to us, and, as we conceive, is erroneous. The effect of it would be, that an executor could never be charged with debts as assets, which he had returned as desperate, unless the creditor proved he had actually collected them; for, as the creditor has not the books of the deceased and cannot know what are the items of account, it would be impossible for him to establish the justice of the debts. Indeed, it would be the same if the debt were due by bond ; for that being in the defendant’s hands, the creditor would be unable to bring the necessary evidence of its execution. In truth, however, both classes of debts are to be deemed *prima facie*to have been debts owing to the deceased, because the executor has returned them as subsisting debts due *452to his testator. When he adds, that they are desperate, the presumption is not, that they were not owing, for his return is apparently to the contrary. But the presumption is, that the debtors are not able to pay, and when the creditor shews that they were solvent, and further that a sufficient time has passed to have enabled the executor to have collected the money, if he had used ordinary diligence, he makes a *prima facie*case, which throws the *onus*on the defendant to shew, that he has made some reasonable efforts to collect the debts and could not, because the supposed debtors to the deceased had counter-demands or refused payment, because they denied the debts, or the demands were stale, or the like ; from which it might appear, either that the defendant had been unable to collect the debts after proper efforts, or that no efforts would have been effectual. He has it in his power to produce the evidences of debt, on which his inventory is based, so as to lay before the jury a probable ground in justification of his failure to collect the money, or in excuse for not attempting to collect it.

Per Curiam. Judgment reversed and *venire de novo.*