Page:Federal Reporter, 1st Series, Volume 10.djvu/42

 £0 FBDEEAL REPORTEE. �prima facie conclusive, and thus defeat our ]'urisdiction pro tanto, tHan it would be to say that it should be absolutely conclusive and thus defeat the jurisdiction altogether. Payne y. Hook, 1 Wall. 425; Union Bank of Tennessee v. Jolly, 18 How. 503; Suydam v. Broad- nax, 14 Pet, 67; Yonley v. Lavender, 21 Wall. 283; Railway Co. v. Whitton, 13 Wall. 270, 285 ; Hyde v. Stone, 20 How. 170 ; Gaines v. Fuentes, 92 U. S. 10; Tate v. Norton, 94 D. S. 747; Carter v. Tread- well, 3 Story, 25, 51. �But while this is true it does not follow that this settlement ia to liave no efifect whatever in taking the aceount to whieh the plaintiff is entitled. Irrespective of this statute there is abundant authority for the position that before the master it maybe treated, so far as the court by the decree of reference shall adjudge, as evidence against the executor to the estent that it contains admissions by him, and in bis favor to the extent that it ia not shown to be incorrect. There is great conflict of authority as to the exact weight tobe giventb it, but it is rather a matter of practice in taking the aceount than a rule of evidence. The earlier cases in Tennessee give such settlements no effect at all. Greenlee v. Hays, 1 Tenu. 300 ; Bashow v. Blackmore, Id. 348; Stephenson v. Yandel, 5 Hayw. 261, (Cooper's note;) Ste- phenson v. Stephenson, 8 Hayw. 123. The cases since the statute of 1822, above referred to, (Code, § 2306,) have heretofore been noticed. In Newton v. Poole, 12 Leigh. 112, 142, it is said that it has long been the rule of our courts to treat these settlements in the probate courts as prima facie evidence, and it rests mainly upon the estab- lished practice of the country, and a presumption that the accounting officers have done their duty. And see Nimms v. Com. 4 Hen. & Munf. 57; McGall v. Peachy, 3 Munf. 388, where it is said the exec- utor will not be required to produce here the vouchers he has filod in the county court but may use copies of them. In IVood v. Barring- ton, 1 Dev. Eq. 67, it is said that a settlement by the county court is no way binding on the next of kin. It may and possibly should have aome weight in taking the aceount, particularly where the executor is dead. It is not a stated aceount. It ia possible that the case of Lupton V. Janney, 13 Pet. 381, which holds that such an aceount is prima facie evidence, and even our state statute, was intended to go no further than give it the weight which these authorities would seem to authorize without the statute ; but the adjudications have extended the operation of the statute further than this, and invested the settlement with the verity of a judicial record. And it is this construction, so much relied on here by the defendant, that trenches ��� �