By the Court.
Benning, J.delivering the opinion.
[1.] The motion to dismiss the pleas was properly overruled.
When the representative of a deceased party to a suit, succeeds to that party’s place in the suit, he, of course, succeeds to that party’s rights. Whatever pleas, therefore, Thomas Wootten could have filed, if he had not died, his administrators after, they succeeded to his place, could equally file.
The other ground assigned for the motion, that the pleas were not sworn to, might, perhaps, have been sufficient, had the motion been made earlier. But the motion not having been made until the lapse of a term or more after the Court had ordered that the plea and answer should be allowed and .should stand for a hearing at the final trial of the cause, this ground was not sufficient.
Besides, had the motion been sustained and the pleas dismissed, the defendants would, under the Amendment Act of 1854, have been allowed, forthwith, to insert in their answers the matter contained in the dismissed pleas. So, the only .question was, whether the matters stated in the pleas should be stated in the form of a plea or in that of an answer ?
[2.] The charge of the Court as to the time when the Statute .of Limitations commenced to run in favor of Thomas Wootten, is supported by three decisions of this Court. (Scott vs. Haddock and Wife, 11 Ga. 258. Morgan vs. Morgan, 10 Ga. 297. Keaton vs. Greenwood, 8 Ga. 97.)
It seems that six or eight years after the settlement be*125tween Thomas Wootten, as administrator, and the complainants, he made a return to the Court of Ordinary. The return, however, according to the evidence, contained nothing 'which was not taken into the account at the time of the settlement — nothing which happened afterwards. In respect to this point, the charge of the Court, in substance was, that the fact that this return was made after the settlement, did not amount to an admission sufficient to take the case out of the 'Statute of Limitations. And we think the charge was right.
[3.] It was the duty of the administrator to return all of his actings and doings, (including the payments on final setlement,) to the Court of Ordinary. How could he return these payments until after they were made; that is, until after the final settlement ? And as a matter of course, the return, when made, would have to include all matters occurring before the settlement and after the last previous return. Is such a return to be construed into an admission, that he still has in his hands assets — an admission, that he ceases to stand upon the rights which he obtained by the settlement ? Certainly not.
One of the pleas in bar of the defendants, was a settlement in full between their intestate and the complainants. To this plea, the complainants replied, admitting the settlement but insisting in general terms, that there had been “ fraud, •accident and mistake” in the settlement. They stated no particulars of fraud, of accident, or of mistake.
In support of this part of the replication, the complainants relied solely upon the return made by the administrator, subsequently to the settlement; which showed, as they insisted, more to have been due to them than they obtained in the settlement ; and therefore showed, as they argued, that there must have been some fraud, accident or mistake in the settlement.
[4.] The Court’s charge on this point, in effect, was, that the settlement was not to be set aside or opened, although a calculation made from the naked return, might show in favor of the complainants a larger balance than the amount they received in the settlement. And in this we think the Court was right.
*126For, first, there was no evidence to show that all the matters which entered into the settlement, • appeared on the face of the return. There was no evidence to show that the parties settled at all by the return. On the contrary, there Ayas evidence to shoAV that they dould not have settled, in Avhole or in part, by the return; for there Avas eAÚdenco, that about six years had elapsed after the settlement before the return was made. And in such a case, if an error exists, it is at least as likely that it will be found to be in the return as in the settlement. Secondly, there Avas no evidence to sIioay the difference betAvecn the balance deducible from the face of the return, and the amount paid over by the administrator, not to have booh known to both sides; and so, no CAÚdencc to show that difference not to have been itself taken into consideration in the settlement; that is to say, there Avas nothing to sIioav accident or mistake, or the fraud of the administrator to have been the reason Avhy the amount paid over, was not as great as, judging from the face of the return, it ought to have been; and to open the settlement of an account, there is, upon the party Avho seeks to open it, a burden, to shoAV not only an error- but an error resulting from accident or mistake, or the fraud of the opposite party. (Story’s Eq. Jur. §527.) Errors known to both sides at the time of a settlement between them, cannot, by either, be made a ground for opening the settlement.
The facts of this case being such as they were, it AV-as not Avrong in the Court to use, in the charge, the language, “ the defendant having relied on and proven a settlement,” &c. The qilestion, Avhcthcr there had' been a settlement, Avas not in issue. That there had been one, Avas expressly admitted by the complainants in their replication. To set it aside or to open it, Avas all they sought to have effected.
So, we think the decisions of the Court below ought to be affirmed.
In conclusion, I may remark, that in strictness, the question, whether there Avas an error in the settlement occasioned by fraud, accident or mistake, Ayas not in issue. This ques*127tion was raised, not in the bill, but in the replication; and being only in the replication, the defendant could neither answer it yea nor nay. A replication puts in issue what is contained in the answer — not now matter which is contained in the replication itself. But, indeed, such a replication as this is perfectly anomalous.