Page:Federal Reporter, 1st Series, Volume 10.djvu/68

 56 PBDEBAIi REPORTER. �time," and the meaning of this is apparent when compared with the report in 5 Cranch, 474. The supreme court says, in Pericins y. Hart, 11 Wheat. 237, that, even at law, a settled aecount is only prima facie evidence of its correctness, and concludes nothing as to items not stated in it, Hager v. Thompson, 1 Black, 80-93 ; Piatt v. Vattier, 9 Pet. 405; Stevens v. Page, 7 How. 819; Ckappedelaine v. Deche- naux, 4 Cranch, 306 ; Lidderdale v. Bobiiison, 2 Brock. 159 ; Pratt V. Northam, 5 Mason, 95. �These cases show that when acquiescence, lapse of time, and the statute of limitations are relied on, and it is shown that a settle- ment has been made of which the parties had notice, and it is sought to be reopened by bill charging fraud, mistake, or the like, the court requires strict pleading, alleging the fraud and omissions, and explain- ing why they were not set up at the time of the hearing. But these rules eannot apply to a case like this, where no final settlement has been had, except one that is ex parte, the effect of which is prescribed by statute and well understood not to preclude an accounting de novo in a court of equity, if any errors have been shown, even in the state courts. It is said that the rule which binds a party to an aecount to which he does not except, presupposes proper notice. Carr v. Lowe, 7 Heisk. 84; Jameson v. Shelby, 2 Hamph. 198, 200, which was not a bill for a general aecount, but only to correct one item; Btate y. Hyde, 4 Bax. 464. �The master says, in reference to this cotton ; �"After a very careful examination of all the proof, I flnd and report that John N. Pulliam, in the year 1864, raised a crop of cotton on his home place, in Fayette county, and in the year 1865 he raised a crop of cotton on the Isbell place, in said county. Of this 1864 crop a portion had been hauled to Mem- phis and disposed of before the death of John N. Pulliam, and the balance was stored in two cabins on the Isbell place. On ifovember 16, 186-5, this cotton, amounting to 22 baies, was shipped by the executor at La Grange, Tennessee, by rail to George W. Trotter, a merchant at Memphis, Tennessee, and was received by him on the eighteenth day of the same month, and stored in the cotton-shed of Eambaut & Lamb, where it remained until Trotter's failure, when the executor toolc charge of it and placed it in the hands of Owen Mc- Nutt & Co., on May 7, 1867, Said flrm, on June 24, 1867, sold nine baies of this cotton at 24 cents a pound, netting $906.83 ; on June 28th f ollowing they sold 12 baies at 21 cents a pound, netting ,$992.98; and on July 17th following the remaining baie at 17 cents a pound, netting $67.97 — making in all the sum of $1,967.78, the amount with which the executor charges himself. �" I also flnd and report that the amount of cotton raised on the Isbell place in 1865, and belonging to the estate, was 38 baies. None of this cotton was ginned or sold at the time of John N. Pulliam's death ; but it was all picked, ��� �