(After stating the case as above.) The fourth item in the paper filed by Monroe with his accounts and which is the clause relied on by the defendants is unintelligible or equivocal in the transcript of the record sent to us. But taking it most favorably for the defendant, and in connexion with the evidence of Lyon, it is not sufficient to prove that there were debts owing to Monroe by Wright to which he might lawfully apply the sum in his hands. Taking it — which is the natural and most favorable construction for the defendants — that the judgments spoken of were recovered against Wright in his lifetime, the assets in Monroe’s hands were applicable to those judgments and not to the notes which Monroe held, if he held any, and the administrator de bonis non of W right was entitled to recover the assets in Monroe’s hands for the purpose of applying them in that way. The evidence of Lyon as to the notes and accounts was incompetent; they were not produced and there was no evidence of their loss-or destruction, or that any search had been made for them. Lyon does not say that he knew the handwriting of Wright, or that the notes were in fact signed by him; the utmost that can be fairly inferred *417■from his testimony is that he saw certain writings purporting to be notes of Wright, but the amounts he does not ■state; and that he saw certain writings purporting to be accounts against Wright, but he does not say that they were in fact owing by Wright, or to whom they were owing if to any one.
As the defendant became administrator of Monroe after July 1869, the only effect of a judgment against him would be to ascertain the debt. There was error in the proceedings below, the judgment is reversed and there will be, a ■.new trial.
Error. Venire de novo.