Bashaw v. Blakemore's Administrator , 1 Tenn. 348 ( 1808 )

Suit was instituted, after which the administrator procured commissioners to be appointed by the County Court to settle with him; they did so, but in the settlement no mention was made of the kind or dignity of the debts paid. This settlement was relied upon as evidence to support the plea of plene administravit, before POWEL, J., sitting alone.

Verdict for defendant.

Upon a rule for a new trial, DICKINSON, for defendant, opposed the new trial, upon two grounds.

1st. The settlement was good primâ facie evidence in such a case.

2d. If it were not, the settlement being in the usual form it was a hard case, and no new trial ought to be granted, citing for the last point Buller, N. P. 326. After the institution of suit, such settlement ought not to have been received, even as primâ facie evidence that the moneys were disbursed in the correct course of administration.

It would be evidence that the aggregate sum was disbursed. Before suit brought, such a settlement would be good primâ facie evidence that the sums were disbursed according 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 showing 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.¹

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.

NOTE. — This, and the cases of Greenlee v. Hays, Stephensonv. Yandel, 5 Hayw. 261, and Stephenson v. Stephenson, 3 Hayw. 123, were decided previous to 1822, 31, 2, which made the settlements of administrators primâ facie evidence for them on the trial of any suit afterwards instituted. Under this act we have the cases of Burton v. Dickerson, 3 Yeates 112, Turney v. Williams, 7 Yeates 172, and Elrod v. Lancaster, 2 Head, 571. Under the Code we have only the case of Curd v. Bonner, 4 Cold. 638. — ED.

¹ See 4 Hen. Mun. 57, 253, 428