delivered the opinion of the court.

This was a scire facias against the plaintiff in error, by the defendant, founded on a judgment against the intestate, which was revived and returned “nulla Iona,” against the plaintiff in error, with a suggestion of a devastavit.

The defendant below answered: First. Denying that assets came to his hands sufficient to pay the judgment. Second. Denying the devastavit. Third. Alleging that the judgment had been paid. Upon the trial, judgment was rendered for the plaintiff, and a motion was made by the defendant for a new trial, which was overruled, and a bill of exceptions thereupon taken, upon which the case is brought here.

The first objection urged is, that it does not appear that letters of administration were granted to the plaintiff in error. This was unnecessary. The scire facias upon the original judgment, as well as that for the' devastavit, alleged that he was administrator, and that was sufficient, in the absence of any denial or proof in regard to his character as administrator.

The objection, that there is no sufficient proof of assets in his hands, because the accounts offered in evidence to prove that fact, appear to have been returned not by him, as administrator, but as an individual, is without any force. He had no power to make *316returns and accounts to the Probate Court in relation to the estate, as an. individual; and as he appears, by the pleadings, to have been administrator of the estate, the presumption must prevail, that he made his returns and accounts to the court in that character.

The next objection is, that the evidence does not show a sufficient amount of assets in his hands to sustain the verdict. It appears by the report of sales of the personalty, returned by him to the Probate Court, that they amounted to the sum of $184.98. But it appears that the appraisement of the property liable to sale, in his hands, amounted to $318.05, and that many articles mentioned therein are not included in his report of sales. These articles, omitted in the sale, appear to be about sufficient to make up the difference between the sum of $184.98, the amount of actual sales, as reported, and the amount of the verdict. And there being no evidence of the proper disposition of those articles, or excuse for their not being sold, the administrator was properly held accountable for them. The evidence was, therefore, sufficient to support the verdict in this respect, without taking into consideration the purchase-money arising from the sale of the land, which was not then due, and could not have been treated as assets in his hands at the time of the institution of the suit for the purpose of showing a devastavit.

The last objection is, to the refusal of the court to instruct the jury, at the instance of the plaintiff in error, “ that if they believed, from the evidence, that there are effects of the intestate, which can be reached by an execution at law, in this State, they should find for the defendant.”

There was no evidence to justify this instruction, and that was a sufficient reason for refusing, it. But it is not correct as a legal proposition. If there were such effects in the State,' the administrator must be presumed to know the fact, and it then became his duty to apply them to the payment of the debts of the estate. And it was no reason why the administrator should not be liable to a creditor of the estate for assets which he had wasted, that there were other effects of the estate within the State, and whether known to the creditor or not, which might have been subjected *317to tbe execution. The administrator was liable for his devastavit, whether there were such other assets or not, out of which the execution might have been satisfied.

Let the judgment be affirmed.