delivered the opinion of the Court—

This action was brought by Everman and wife against Jones, on a note which he had executed to the wife, as' the administratrix of William Wren, deceased, before her marriage with the plaintif, Everman.

The defendant set up and relied upon, by way of set-off, an account against the wife for board and maintenance furnished her prior to her marriage.

Upon the trial the court instructed the jury “that the note sue.d on was prima facie evidence that the defendant’s account had been settled up to the date of the note, and the burthen of proof to show that it was not, was upon the defendant.”

This instruction we deem erroneous. The execution of a note to a person, as administratrix or admin- . . . * istrator, is prima facie evidence that the assets of the intestate constitutes its consideration. (Williams &c. vs. Collins &c. 1 B. Monroe, 61.) In the execution- of such a note the obligor has no right to demand a settlement of the individual liabilities of the administrator. Such a right might conflict with the proper discharge of his duties, by preventing a legal administration of the assets. As the payer of the note 1 . , , , . „ . has no right to demand an abatement oí its amount, at the time of its execution, on account of any debt, which the administrator in his individual capacity may owe him, it follows as a necessary consequence that no presumption can arise that any such claims had been then settled by the parties..

But although a note executed to an administratrix as such must be regarded prima fade as assets of the intestate, yet as the administratrix may have made it her own property, by charging herself or being charged in a settlement with the amount of it, and as she has elected, in conjunction with her husband, to ’ *634sue on it in her own personal right, and thereby treat it as her own, the defendant might rely upon the individual account of the wife as a set off; the effect of which defense could only be avoided by allegation and proof on the part of the plaintiff that the note sued on still continued to be legal assets.

The other instructions given to the jury are unobjectionable; but for the error indicated the judgment must be reversed.

Wherefore, the judgment is reversed, and cause remanded for a new trial in conformity with this opinion.