Bashaw v. Blakemore's Administrator

1 Tenn. 348

• Court: Tennessee Superior Court for Law and Equity
• Decided: November 6, 1808
• Status: Published

Opinion

Per Curiam.

Powel j. Overton j. and [Humphreys j. having been employed did not sit.]

After the institution of suit, such settlement ought not to have been received, even as prima facie evidence that the monies were disbursed in the correct course of administration.

It would be evidence, that the aggregate sum disbursed. Before suit brought, such a settlement would be good prima facie, evidence, that the sums were disbursed aaccording to the course pointed out by law, but it cannot be afterwards, as the defendant then had notice of the demand and his settlement should have been prepared to meet it, by shewing how each item arose. In fact it were best in all cases to do this, but a general settlement may be evidence, where there is no notice of claims of a superior nature. *

Upon the second ground however, we are of opinion, that no new trial ought to be granted, for it certainly would be a hard case on the defendant, who settled according to the common method of doing so, to pay this money out of his own pocket. There seems as much equity, that the plaintiff should lose as the defendant.

* See 4 Hen & Mun. 57. 253, 428.