
    James Hall, Administrator of Abel Jewett, Sen., deceased, v. Eli Pratt and Susannah, his Wife, Administrator and Administratrix of Abel Jewett, Jr., deceased.
    Where a creditor is appointed administrator to his debtor, and dies without receiving assets, it is not to be assumed that the debt was paid, nor is it extinguished.
    This cause was reserved for decision here, in the county of Licking.
    It was an action of assumpsit, upon promises between the respective intestates. The first cause is upon a note for thirty-five dollars, in grain or pork, given by the intestate of the defendants to the intestate of the plaintiff. The second count is upon a similar note for twenty dollars. The third is the common counts for work and labor, money paid, had, and received, goods sold and delivered, etc.
    The defendants pleaded the general issue, and gave notice of set-off; and also, that after the decease of the said Abel Jewett, jr., the said Abel Jewett, sen., became co-administrator of his estate, with the said Susannah Pratt, and as *such administrator, he received divers large sums of money, out of which he retained whatever was then due and owing to him, the said Abel Jewett, sen.
    Upon the trial, the plaintiff offered the notes specified in the first and second counts to the jury. It was admitted that after the death of Abel Jewett, jr., Abel Jewett, sen. (the payee), together with said Susannah Pratt, administered upon his estate, gave bond, and took the usual oath. There was no evidence that Abel Jewett, sen., did any other act as administrator. He afterward died. The said Susannah subsequently married the said Eli Pratt, and at the March term, 1826, she, in conjunction with her husband, settled the accounts of the estate of said Abel Jew■ett, jr. The accounts were also produced. They were made out under the following caption : “ Dr. Susannah Pratt (late Susan-nah Jewett), administratrix of the estates of Abel Jewett, jr., in account current with said estate. Or.”
    In this account she charges herself with the amount of the assets, which came to her hands — seven hundred and seventy-six dollars and twenty-six cents. She credits herself with money paid out — five hundred and twenty-three dollars and sixty cents — and gives the items of payments, from which it appears that nothing was ever appropriated,paid, or retained on account of the two notes; leaving a balance in her hands of assets of the estate amounting to two hundred and fifty-three dollars and sixty-six cents.
    In this state of the testimony, counsel for defendants objected to the admissibility of the notes, which objection was sustained by the court, and judgment rendered against the plaintiff, to reverse which, this writ of error is brought.
    H. Stanbery, for plaintiff in error:
    The ground taken by the court below, and now relied upon by the defendants’ counsel, in support of this decision, is this : That when Abel Jewett, sen., the creditor, became administrator to Abel Jewett, jr., the debtor, the right of action was suspended, and being once suspended, it could never be revived.
    *The case of Bigelow v. Bigelow, 4 Ohio, 147, was supposed by the counsel to settle this case; foryaltkough not analogous in circumstances, it was said that the principle there established embraced it.
    In the case referred to, the debtor had administered to the creditor. The court held the consequence to be, that the administrator and his sureties should be fixed with the amount of the debts or assets; and that no action could afterward be maintained against the administrator for the debt as it originally stood.
    It is admitted, however, that the court do say, a personal action once suspended, is always suspended; and that this principle is there laid down without, qualification. The authorities referred to by the court are Cro. Car. 372, and 1 Com. Dig. 337.
    The case in Cro. Car. is Dorchester v. Will; and the facts are these: There were two obligors in a joint and several bond. One of the obligors died and made A. his executor. The obligee afterward died and also made A. his executor. A., as executor of the obligee, brought debt on the bond against the surviving obligor. The defendant pleaded these facts ; and that assets of the deceased obligor bad come to the hands of A., sufficient to pay this debt. A. replied, that neither at the death of the obligee, nor at any time afterward, had any goods of the deceased obligor come to-his hands. The defendant demurred. The court overruled the-demurrer, and held that the action was maintained. In their opinion, the court put a number of cases, and among others the following: “When the. debtee makes the debtor his executor, it is not absolutely a discharge of the debt, for the debt remains as assets in the hands of the debtor executor; and it is quasi a release in law, because he can not be sued; but it is a mere suspension of the action; when a feme debtee takes the-debtor to husband; or if a man debtee takes the debtor to wife, that is a release in law, because they may not be sued, and personal actions once suspended, are perpetually suspended. But when the executor of the debtor is made executor of the debtee, he has nothing thereby in his own rights, but it is only to sue an action in the right of another.” None of these cases resemble *the case at bar, in which the debtee administers to the debtor; but it is claimed that they establish a principle within the operation of which the case at bar must come. And that principle is, that when a right of action is so circumstanced as to-be temporarily suspended, it is not merely suspended, but is absolutely extinguished.
    Now, as a general proposition, embracing all cases, and especially as applicable to this case, I deny this consequence of the suspension of a right of action. I am prepared to suggest to the court a variety of cases, in which there is this temporary suspension, and yet no extinguishment; and to show that in every case where a total extinguishment has been holden to be a consequence of suspension, this intendment has been made upon some sensible ground, to advance justice and to prevent the delay o'r destruction of rights. Indeed, this is the uniform character of all legal fictions.
    The cases put in Dorchester v. Webb, above cited, are in conformity with thes^ views. “ 1. If the debtee-makes the debtor his executor, it is not a discharge of the debt, for the debt remains as assets, in the hands of the debtor executor, and is quasi a release’ at law,' because he can not be sued,” etc. Here this intendment does not violate common sense and useful reason. Inasmuch as the debt can not be enforced by suit it is right that it should be¡ reached in some way, and therefore, the law presumes that the individual debtor has paid to himself as- administrator the amount of the debt for the use of the estate.
    
      “2. But it is a mere suspension of the action where a feme -debtee takes the debtor to husband.” It is difficult to understand what consequence, as to the action, the court intend, under these circumstances. The case of debtor executor is hold'en to be a release or extinguishment of the action; this case of feme debtee immediately follows, and is so put as to seem to be contradistinguished from the other. “But it is mere suspension of the right of action, etc.;” that is, not a release or final discharge. If this be the true construction, then this case is one, where a mere suspension works no extinguishment of the right of action. But if the case do not warrant this construction, and is taken to fall within the rule of extinguishment, there is no reason for it. *It is not the case of a fictitious union of creditor or debtor in an executor or administrator (which alter no liabilities), but of their actual legal union in marriage, which operates an entire transmutation of precedent rights and liabilities. By the marriage the husband becomes entitled to the choses of the wife upon reducing them to possession. As debtor, he is already in possession of the debt, which is the chose, and rei instanti, upon the marriage, it becomes his own and is extinguished.
    “ 3. Or if a man debtee takes the debtor to wife, that is a release in law, because they may not be sued, and personal actions once suspended are always suspended.” In this case no one can doubt that the marriage operates as a discharge of the debt, for the plain reason that the debt due from the feme, upon her coverture, becomes the debt of her husband, and therefore, the remedy, by action, expires with the debt itself. Why resort to the fictitious and nonsensical reason of the text, when the true reason is obvious and sensible.
    The only other book referred to by the court, in Bigelow v. Bigelow, is 1 Comyn’s Digest, 337. “ If an executor, who was indebted to a testator dies, an action does not lie against his executor or administrator for the debt; for a personal thing suspended is extinct.” Off. Ex’rs. 45 is cited in the margin. If this passage is understood to mean that under such circumstances the debt is extinguished, and no action lies against the debtor or his representatives, then it is not now the law. An action does lie against the debtor or his representatives, and even against his sureties to recover the full amount of the debt. Vide Bigelow v. Bigelow, ut supra. But if it is taken to imply that no action afterward lies to recover the identical debt as it stood before the death of the creditor, then the true reason is, that the right of action for the debt is gone, not because of its suspension, but because the law presumes the debt to be paid and changed into assets, for the recovery of which a different right of action is substituted.
    I pass to other cases illustrative of the operation of this principle of suspension.
    “ The case upon a special verdict was: a woman executrix mar•ri eth with a debtor of the testator, the husband dieth and *debt was brought against the woman, who pleaded riens inter mones, and •all this was found; and if this was assets, was the question. And it was adjudged that this was not assets in her hands, for by the intermarriage, the debt which the executrix had in auter droit, was not extinct, but suspended, and the action was revived against the executor of- the baron.” Crossman v. Reade, Cro. Eliz. 114. Here was a case of temporary suspension of the right of action, and according to the unqualified rule in cases of suspension contended for, the right of action was extinct. In this instance such a consequence would have worked a manifest injury to the estate of the -deceased creditor of the feme, as she would then have been liable to the amount of the debt as assets, when by the finding of the jury she had never received one cent of it. The rule was, therefore, held not to apply; and the decision of the court leads to this result: that as there is no reason in the rule, there must be some reason out of it to authorize its application.
    In Co. Lit., title Releases, 264, B. it is said, “If a feme executrix take the debtor to husband, this is no release in law, for that should be a wrong to the dead, and in law work a devastavit, which an act in law should never work; and so it was adjudged in the King’s Bench.” Mich. 30 and 31 Eliz.
    In the case of Wankford v. Wankford, Salk. 300, the question arising in the case at bar is very fully considered in all its aspects.
    It is said, by Powell, Justice, “There would be a great diversity when the obligee made the obligor his executor and when the obligor made the obligee executor; for, in the last case the debe is not extinct, but only upon supposal -that 'the executor has assets which he may retain to pay himself; for, though the obligee may give the obligor the debt, yet that will not hold vice versa, but in case of failure of assets, the executor may sue the heir. Indeed, where the executor has the assets the debt is gone, but that is be-’ cause he may retain and pay himself, and so is 12 H. IV., c. 21; Plowd. 185, B. But if he have no assets the act is never so much as suspended, for the executor may sue the heir at the very day; and so it is not within the rule of a personal action once suspended, etc.”
    So, Holt, C. J.: “ If the obligor make the obligee or the *ex ecutor of the obligee his executor, this alone is no extinguishment,, though the same hand is to receive and pay; but if the executor has assets of the obligor it is an extinguishment, because it is-within the rule that the person who is to receive the money is the person who is to pay it; but if he have no assets, then he is not the person that ought to pay, though he is the person who is to-receive it,” etc. “ In the cases of Locke and Crosse, where the obligee was made executor to one of the obligors; and in action by him against the other, the matter was pleaded, and the plea was-held to be naught, because it was not shown to what value the-assets were that he administered. But if the defendant had shown that he administered goods to the value of the debt in demand, it had been a good plea.” Hob. 10; Hutt. 138; 2 Lev. 73; 3 Keb. 116, are cited in the margin.
    In 3 Bac. Abr. 10, under the title “ of making creditors executors,” it is said:
    “ The reason why the debtor’s making the creditor his executor, or the creditor’s taking out administration (which is precisely our case) is said to suspend or extinguish the action, is on supposition of assets. So, if there are -no assets, he may sue the heir of the obligor, where the heir is bound.”'
    Thomas v. Thompson, 2 Johns. 471, may be cited and relied on as establishing a different doctrine. It is therefore proper to notice it. A. recovered judgment against B., as administratrix of C., and afterward appointed B. executrix, and died. It was held, that the judgment debt was thereby extinguished. Tan Ness, Justice, in delivering the opinion of the court, lays down the rule that a personal action once suspended is always suspended, without exception or qualification. But, in a few paragraphs after, the learned judge refers to the rule laid down by Lord Holt, in Wankford v. Wankford, 1 Salk., ut sup., to determine when a suspension of the remedy works an extinguishment; and according' to that rule, he decides that as the executrix, in the case before him, had assets in her hands as administratrix, the debt was, for that reason extinguished, as the same hand Was to pay and receive.
    The principle deducible from the foregoing cases, in reference to the case at bar, is clearly this: That as Abel Jewett, *sen., never •had assets in his hands to satisfy his debts, as there was no retainer by him while his temporary administration continued, and .as there has since been no payment of it, by the surviving administratrix, the debt yet survives, and the remedy, by action, survives with it. To hold the contrary, would lead to manifest injustice, and deter any creditor from availing himself of the provisions of our statute giving to him the right of administration upon the estate of his deceased debtor.'
    It-has been shown that the legal fiction of a temporary suspension of the right of action, being an extinguishment, is not of universal application. Other'instances than those already before the court suggest themselves.
    Between an intestacy, and the granting of administration, there -is a total suspension. So in the ease of alien enemy, of coverture, .and outlawry.
    J. Dille, for defendant in error:
    The question arising in this case was so fully settled in the ease of Bigelow v. Bigelow, 4 Ohio, 147, that it seems hardly necessary to trouble the court with any remarks here. The principle there recognized, that personal actions once suspended are always suspended, establishes as complete a bar in this as it did in that case, to the plain tiff’s recovery. That principle is so settled by authority that the court will pause long before it sets it aside and exposes us to greater injustice, resulting from the want of such a rule. Because a rule may, in an individual case, work injustice, is no good ground for setting it aside; for every rule of law may have this effect. We find this principle recognized on broader grounds in Noy’s Maxims, 2d Am. ed. from 9th London ed. 33, Max.
    The law considers that a creditor places himself in a better situ.ation by becoming administrator to his debtor, for he thereby may retain his debt out of the assets which come to his hands. If he •does not do it, it is his own fault, and there are no other means inown to the law whereby he may recover such debt.
    When he becomes administrator, the contract, eo instanti, is ^extinguished, for it loses one of its essential requisites — parties. Yet no injustice is done, for he may retain. Such is the rule of law in all cases of this kind. If a woman marry with her obligor, the debt is extinct, and she shall never have any action if another be bound with him, for by the marriage the action is suspended, and an action personally suspended against one is a discharge to all.” Noy’s Max. 83. But suppose this rule should not' apply here. The fact that Abel Jewett, sen., became administrator to Abel Jewett, jr., is prima fade proof that assets came to his hands, and that he retained his debt. If retained, the notes upon which this suit was brought, were paid and satisfied, and can be no longer the subject of an action. To rebut the effect of this proof, the settlement of Susannah Pratt, the co-administratrix, is offered in evidence, wherein, among the items of payment, nothing appears to have been paid or retained on account of those notes. This proves nothing. Susannah Pratt was obliged to account for nothing but the assets which came to her hands. If-money or property was received by Abel Jewett and wasted, she is not liable for it, but is bound only to account for the assets which came to her hands. 2 Bac. Abr. 295, tit. Ex’rs and Adm’rs, letter D, 2. Indeed, in that account, she only professes to account for what she received, for the court will perceive from the bill of exceptions, that her account is under the following caption : “Dr. Susannah Pratt (late Susannah Jewett), administratrix of the-estate of Abel Jewett, jr., deceased, in account current with said' estate.” This account, then, proves nothing in favor of the plaintiff. There is no fact in the whole bill of exceptions to show that this-is a hard case, requiring an exemption from the rule. But, on the other hand, reverse this established rule of law, and you will place every ease of this kind in a labyrinth of difficulty. As for instance, A. dies indebted to B., who administers; after some time B. dies, and C. administers upon his estate, and D. takes letters-of administration, de bonis non, of the estate of A. C., as B.’s administrator, brings suit against D., administrator of A. As the-law now stands, he can not; but reverse the rule, and in order to establish his defense, you will compel D. to prove that which is-impossible: the secret retainer by *B. of his debt out of the assets which came to his hands. There may be the specious appearance of justice in this praeti.ee, but it requires but little reflection to perceive that it will open wide the door to injustice.
    
      'The rules of law are general in their nature, and there is no one of them that may not, in some particular cases, operate hard;, yet the hardship must he borne with, and he who suffers must console himself that it is for the public good.
    It was not incumbent on us to prove that assets came to his hands. That is presumed from the fact that he was legally qualified to receive, take, and hold them. That presumption might, have been rebutted by proof that he died immediately after he was qualified. But no such proof was offered. He might have lived .years after he became administrator. There is no fact that takes-this case out of the rule, and let the law prevail.
   Opinion of the court, by

Judge Wright:

The plaintiff intestate was the promisee of the notes on which the suit is brought, which were given by the defendants’ intestate. The promisoe, in his lifetime, was appointed administrator to his promisor, but never received any assets, and the main question presented is, whether the mere appointment of a debtee administrator of his debtor’s estate, extinguishes the debt.

The granting administration of an estate to one indebted to the intestate, is an extinguishment of the debt. The chose in action becomes converted into a chose in possession, and is transmitted, by the mere operation of law, which is equivalent to judgment and execution. The debt is thus satisfied and extinguished. The instant administration is granted, the administrator being the person to pay and to receive, is considered as having paid the debt,, and as holding the amount in his hands as assets; and the debt having once become assets, no act of the parties can return them back to an obligation. Bigelow v. Bigelow, 4 Ohio, 147; Gordon on Decedents, 153, 159; Toll. Ev. 238; 1 Com. Dig. 135, 136; Dorchester v. Webb, Cro. C. 372; Wankford v. Wankford, 1 Salk. 302, *305; Winship v. Ross, 12 Mass. 199; Hayes v. Jackson, 6 Mass. 149; Stevens v. Gaylord, 1 Mass. 256; Woodward v. Lord Darcy, 1 Plowd. 184-186; 1 Sid. 79. The case of Bigelow v. Bigelow, which is solely relied upon by defendant’s counsel, is one of this class of cases. In that case the defendants’ intestate had. been appointed administrator to his creditor, and it was held that the debt due by him, having become assets in his hands, no action could be maintained upon the original debt against him. The principle of this decision is sensible, and is founded in justice. It •does not release the debt without payment, but charges the person bound to pay the money, directly with it, as assets.

The case at bar is entirely different. Here the creditor, not the debtor, is appointed administrator. In such cases the grant of administration may, or may not, according to circumstances, extinguish the debt. The rule is different, but like that applicable to the other class of cases, it looks to the same end, the attainment of justice by direct means. It is that the administrator has a' right to retain what is due to himself out of the assets in his hands to be administered, because he can not sue himself. Gordon on Decedents, 179; 2 Black. Com. 571; 3 Black. Com. 18, 19. If, •under such circumstances, he could sue himself, it would avail nothing, for the mere operation of law, in this, as in the other class of cases, is equivalent, to judgment and execution. It must be obvious that the right to retaimsupposes the possession of assets out of which the debt may be retained. Without chattels of the decedent the right in the administrator would be naked and fruitless; in such cases it is laid down that the appointment of one administrator to his creditor is not an extinguishment, unless he has in his hands sufficient to satisfy the debt; and if the goods he has are insufficient, or he has none, he may immediately sue the heir. Gordon on Decedents, 185. In the case at bar it is admitted that no.assets whatever came to the hands of the administrator. There could not, therefore, be an extinguishment of the debt, arising either from supposed satisfaction or from mere operation of law.

The counsel for the defendants rests' his defense upon the expression of the court in the case of Bigelow v. Bigelow, 4 Ohio, 147, that “ personal actions once suspended are *always suspended. Cro. Car. 372.” And the remark of the court that “Chief Baron. Comyn, who is himself said to be authority, has recognized the.principle as a sound one, that a personal, thing suspended is extinct. 1 Com. Dig. 337.” The case referred to in Cro. Car. is Dorchester v. Webb; there one of two obligors had died and made A. his executor; the obligee died afterward and A. was his executor also. A., as the executor of the obligee, and the surviving obligor, pleaded that' assets of the deceased obligor had come to A.’s hands sufficient to pay the debt. To which it was replied that no goods of the obligor ever came to his hands. Upon demurrer, which admitted the truth of the replication,’the court held the action maintainable, and agreed “ that when the debtee makes the debtor his executor, it is not absolutely a discharge of the debt,” for the debt remains as assets, and is quasi a release in law, because he can not be sued ; but it is a mere suspension of the action where a feme debtee marries the debtor; though “ if a man' debtee takes the debtor to wife, that is a release in law, because they may not be sued, and personal actions once suspended are perpetually suspended !” The decision of the case reported is right, but the careless report of the language of the court occasions the difficulty. The first proposition of the court I have shown by abundance of authority, and the reason of the thing is correct; the second rests, palpably, on a similar principle. By the intermarriage, if the woman be the debtor, the debt becomes, by operation of law, the debt of the husband, and so is extinguished, and the remedy'is gone; so the law gives the husband the ehoses in action of the wife when reduced to possession, and if he himself be the debtor he is already in possession of the debt, and eo instanti, upon the marriage it becomes his own, and is therefore extinguished. . These are cases of extinguishment and not of suspension. And the very ease in which the court are made to say, “personal actions once suspended are perpetually suspended,” was one of temporary suspension, so declared to be, and for that reason was sustained by the court. The passage in Com. Dig. 337, is this : If an executor, who was indebted to the estate dies, an action does not lie against his executor or admintrator for the debt; for a personal thing suspended is *extinct.” In Crossman v. Reed, Cro. Eliz. 114, a woman executrix had married a debtor of her testator ; the husband died, and debt was brought against the woman. She plead riens inter manes, which was found, and whether this was assets was the question. The case was adjudged for the defendant that this was not assets, because the debt held by her, as executrix, was in auter droit, and therefore was not extinguished by her marriage, but only suspended ; and the right of action was revived against the executors of the husband.

In Wankford v. Wankford, 1 Salk. 302, Justice Powell asserts that where the obligor makes the obligee his executor, the debt is extinct “ only upon the shpposal that the executor has assets which he may retain to pay himself; for though the obligee may give sthe obligor the debt, yet that will not hold vice versa. But in case of failure of assets, the executor may sue the heir. Indeed, where the executor has the assets, the debt is gone; but that is because he may retain and pay himself, and so is 12 H. IV., c. 21; 1 Plowd. 185, B; but if he has no assets, the action is never so much as suspended, for the executor may sue the heir at the very ' day, and so it is not within the rule of personal actions once suspended,” etc. And Holt, Chief Justice, 1 Salk. 305, says, “If the obligor make the obligee, or the executor of the obligee his executor, this done is no extinguishment, though the same hand is to receive and pay. But if the executor has assets of the obligor,, it is an extinguishment, because it is within the rule that the person, who is to receive the money, is the person who is to pay it; but if he have no assets, then he is not the person that ought to-pay, though he is the person who is to receive it,” etc. He says also, “the same point was again resolved (Hill, 24, 25, Car. 2 B. R.) in the cáse of Locke v. Crosse, where the obligee was made executor to one of the obligors; and in an action by him against the other, where the matter was pleaded, the plea was held to be naught, because he did not show to what value the assets were that he administered; but if the defendant had shown that he had administered goods to the value of the debt in demand, it had been a good plea. Secondly. Suppose the obligor takes administration to ^obligee in that case, the same person has a right to-receive the money and to pay it, yet that will be no extinguishment. And so is Sir John Needham’s case, 8 Coke, 136. In 1 Bac. Ab., title Executors and Admr’s, A. 10, p. 37, it is laid down “ that if a person dies intestate, and the ordinary commits administration to a debtor, the debt is not thereby extinguished. Off. Ex. 31. And, therefore, if an obligor administer to the obligee,, and makes his executor and dies, the creditor of the obligee may well bring an action against him.” Sid. 79.

Upon similar principles, it was adjudged in the King’s Bench (30 and 31 of Eliz.), that “ if a feme executrix take the debtor to husband, this is no release in law, for that would be a wrong to-the dead, and in law work a devastavit, which an act in law shall never work.” Co. Lit., Releases, 264, B. Judge Van Ness, in Thomas v. Thompson, 2 Johns. 471, lays down the rule, “ that a personal action once suspended by the voluntary act H the party entitled to it, is forever gone and discharged.” In that case A. had recovered judgment against B., as administratrix of C., and afterward appointed B. executrix, and died. The judge says (p. 474), “ Here the defendant as executrix of the judgment creditor,. Alexander Thompson, had a right to receive the amount due on the judgment, and having assets, as administratrix of the judgment debtor, she ought to pay. The judgment, consequently, by her appointment as executrix (the will having been proven), is extinguished.” In this case the judge, after laying down the position (with the qualification of the voluntary act of the party), that a personal action once suspended is forever gone, it will be seen decided, and decided correctly, that the extinguishment resulted, not from the fact of administration, but from the receipt of' assets, which she ought to pay. It seems to us to follow, from the-authorities, and from right reason, that as the plaintiffs’ intestate, in the ease at bar, never had any assets of his debtor in his hands, out of which he could retain the debt due to him, the taking of administration by him does not release or extinguish the debt, but that it survives to his representatives. The case of Bigelow v. Bigelow, relied upon, was rightly decided; there the debt became assets, and was extinguished; and we do not understand the court as deciding, in that *cause, for it certainly was not called upon to decide that question, “ that in all cases, personal actions, or things once suspended, are always suspended, or extinct.” Nor do we so understand the law. It appears, also, in that case (p. 148), that the whole sum due on the covenant, which was the foundation of a suit, had been judicially found to have been all paid before suit brought, so there would be no right in the plaintiff to recover on the covenant. A great variety of cases,, of temporary suspension, without extinguishment, will suggest-themselves to every professional man, and it is unnecessary to-enumerate them.

The difficulty which the counsel supposes would result from-holding this debt non-extinguished by the administration without assets is not perceived by us. The decision would not hold the debtor to prove, that which is supposed impossible, the secret retainer of the debt out of assets, but would be satisfied by proof, that the creditor, as administrator, had assets out of which he-might have retained the debt.

The court of common pleas, therefore, erred in rejecting the evidence offered, and their judgment must be reversed, and the causaremanded for further proceedings.  