Petition for a re-hearing.
May 2.
For the first time since I commenced practice in this Court, I yield to a conviction that it is my duty to my clients, to present a petition for a re-hearing. I need not stop to prelude my argument with any protestations of great deference for this Court, and diffidence in calling their judgment in question. I trust there is no need for me to say, that I hold the adjudications of this Court in all due regard, and hope the Court will esteem it as an evidence of my full confidence in the good sense and sound judgment of its members, that I shall attempt to show them wherein, it seems to me, important facts have escaped their notice, in consequence of which the justice of the case has not been reached.
Robert Grundy was the administrator of James Simpson, and guardian to his heirs. When he was appointed, does not appear; but he died previous to June, 1822; for at that time James McMurry was appointed guardian to three of the heirs, on a suggestion of the death of Grundy; and Abram Sally, who had married one, was appointed guardian for another.
In February, 1823, a settlement of the accounts of *142Grundy, as guardian, was made by County Court commissioners — showing a balance then against his administrators, of twenty seven hundred and twenty one dollars forty three cents. This included negro hire, from 1813 to 1822, and also, a charge of two hundred and fifty dollars, for interest on bonds for the hire of negroes. As there were six distributees, e.ach one’s share would be four hundred and fifty three dollars fifty seven cents. On the 27th of September, 1823, William Rutter and Joseph Grundy, administrators of Robert Grundy, the former guardian, paid to Abram Sally, for himself and as guardian to one of the other children, eight hundred and forty seven dollars' twenty six cents — for which he gave a receipt stating the sum, and adding these words — “, of my wife’s and Betsey Simpson’s estate, which is in full.”
This settlement' was. made with Abram Sally, who was of full age, and was acting as .guardian to Betsey Simpson. It was made- only seven months and a half after the County Court commissioners had ascertained the.balance due, and the administrators paid him within eight dollars seventy six cents of that balance on each share, if . a commission' of five per cent, be allowed, and no interest be charged. Thus,- the'amount paid on each share, was $423 63; add 5 per cent, $21 18, makes $444 81 — difference $8 76. And the receipt given at the time, by a man competent to act for himself, states as I have before shown, that this amount is “m/wZZ.” The matter rested thus for about five years, when all the heirs filed a bill for a settlement, and prayed a decree for what was due them, without noticing the settlements which had been made. " On a final hearing, the Circuit Court gave a decree based on a calculation which charged the administrators -with fifteen dollars interest from l2th February, 1823, till 27th September, 1823 — showing that, by that estimate, the amount paid Sally on each share was minus the amount due on the latter day $23 75; and'giving a decree for the difference, with interest till paid, amounting to $43 44., I am sure that when this Court affirmed' that decree, it must have escaped the attention- of this Court, that *143Sally had acknowledged the amount received to be in full, and that in his bill for a further amount, he does'hot intimate a charge of fraud, or an allegation of mistake in the settlement made between him and Grundy’s administrators. It does not follow that because the receipt bears date the 27th of September, the money was not paid sooner. Nor does it follow, because a certain amount is named in that receipt, nothing had been paid before.
The sum stated-in the receipt, (“eight hundred and forty seven dollars and forty six cents,”) shows of itself that a net calculation must have been made .at the time, from data which the parties had in their possession, and on which they agreed. They may have paid him’something before.- They may. have made other disbursements after, the date of the.County Court settlement,' of which he was.apprised, and which they were bound' to make. To cover all that had passed, be it what it might, after a net calculation, he acknowledges that the amount then received is in -full. ' I ask, now, in all, justice and reason, whether, when that amount is within a trifling sum of what was originally due, and when he rested on it, satisfied,. for five years, he ought not to be held to an allegation, at least,.of fraud'or mistake, before the Court would disregard' the settlement,, and give a decree in fiis favor? Is it to be henceforth the law of this land, that a man who. has gone into a fair settlement and close calculation to a half, cent,-and has given a receipt “ in full,” may, five years afterwards, file his bill for a new' settlement,--and call his adversary to a new account, without even alluding to the- .settlement which has been made — much less alleging or proving any fraud or mistake in it?' I ask- — is this the law? It is more important to me, and to' the country, to know what the law is, than that it should be thus or so.
On the 20th of October, 1827, James McMurry, guardian for three of the heirs, had a settlement with those administrators, in which, from the. calculations made, the amount due them was estimated to be fourteen hundred and seventy nine dollars, and he' gave his receipt for that sum “ ih full of what Robert-Grundy’s estate was owing said McMurry, as being guardian for *144three of the heirs of James Simpson.” These three heirs are also complainants in this cause — praying for a settlement and decree, without taking any notice of ^ ^ .the‘settlements which have been made, and without cjiarg¡ng frau(j or mistake. The Circuit. Court gave them also relief, in á decree based on a calculation charging interest on the' whole balance, from 12th February, 1823, till the date of the receipt, and then interest on the remainder, till decree, amounting to one hundred dollars sixty two and a half cents each. I must insist, in the case of these'three heirs, as in that of the other two, that the amount paid ($1479,) shows clearly .that, the-parties made a net calculation from data which were before them; and the terms of the receipt, expressly stating that the amount paid was in full, show that the data were satisfactory to McMurry. The complainants allege no' mistake; the amount paid is $118 29 more than the principal sum due, and of course includes some interest. If the parties calculated interest at all, they doubtless included all that had accrued; and when it is recollected that, from time to time, Mc-Murry must' .have needed' advancements for his wards, and in all probability must have drawn something before, the receipt is at least prima facie evidence of a full settlement and payment of all that remained due.
Again: permit me to suggest that it is within the judicial knowledge of the Court, that the customary curreney of the country was then greatly depreciated. It may be that, in making the County Court settlement, in 1823, a considerable amount of Commonwealth’s paper was included at par; which is indeed highly probable. It would not do to charge the nominal amount of this and interest oh it. And McMurry might prefer, in giving his receipt for what came to his hands, to charge himself with dollars, not bank notes.. I only allude to these things to show that something else may have been taken into the estimate, in settling with McMurry, beside the mere amount of balance due. on County Court settlement' with interest on it. Indeed,' the papers themselves show, that some other matters were taken into the account; and as the receipt is in full of what *145Robert Grundy’s estate was owing, it threw the complainants upon showing fraud or mistake. I know that a receipt may be explained, or even contradicted; but I have always understood that a written acknowledg- * ^ ment of settlement and payment in full, amounted to something more than a mere receipt for so much in part of a sum due.
I do confidently believe, that some of the prominent facts suggested above, as they were not noticed in my brief, so they must have escaped the notice of the Court; and that, when the Court shall have fully considered them, the decree cannot be affirmed.
To Thomas Simpson, the sixth heir, the administrators paid, on the 16th of October, 1827,-the sum of seven hundred and ninety nine dollars — being three hundred and forty five dollars forty three cents more than the principal sum due him, and if interest were allowed, it was still more than two hundred dollars over his share; and yet he files his bill with the rest for a share. In the original answer, all these receipts are exhibited, and it is expressly alleged that the sums were paid. In the amended answer, the administrators pray, “ for the purpose of settling the whole matter agreeable to law and equity, for a decree over against the complainants, for whatever it may appear they have overpaid them, or either of them.” And yet we are refused a decree over against Thomas Simpson. The Circuit Judge refused it on the mistaken idea that process was necessary on the cross bill; but this Court, unwilling to sanction that absurdity, justifies it on the ground that the cross bill is yet pending. See the record — 15th of November, 1837,“came the parties, and the cause is submitted to the Court for a decree.” What was the cause? It was the whole cause: the prayer on the part of the complainants for a settlement of accounts and a decree, together with the defendants’ response, that they had overpaid, and a cross prayer for a settlement of accounts, and a decree. So the Court below evidently regarded it, from the terms used in the final decree; and the dismissal of Simpson’s bill, without saying farther, was a refusal of the defendants’ prayer for a decree *146over. If I am wrong in this view of the chancery practice, there are thousands of cross bills in chancery in this State, which have been sleeping for years, and which may yet be roused from their stillness, and pressed on to final decree, to the utter astonishment of parties and counsel. What would Thomas Simpson think now, of the justice of Kentucky, and the safety of her legal forms, if after contending against that cross bill five years, he finally succeeded, as he thought, and as the Judge, and his counsel, and even the record told him; and yet, when he had moved from the State, it was resuscitated and made the basis of a decree against him, for several hundred dollars?
[By JudSe Ewing.]The Court is with great deference requested to review the case; and I again assure the Court I make this request in no captious spirit, but in confidence that .the plaintiffs in error will in due time get justice.
M. D. McHenry, for Grundy's Administrators.
Response to the Petition.
May 6.
In response to -the petition, we would remark, that the record of settlement with the County Court showed the amount in dollars, which was due from Robert Grundy, as the guardian of the complainants. The payments were made by the defendants, his administrators, and they must have known, if any deduction was made on account of Commonwealth’s paper, or on account of an allowance for commission, or on any other account; or whether the payments were made, in part or in whole, before the receipts bear date; yet they set up the receipts as evidence of the amounts paid, without any intimation or suggestion, that any more was paid, or that any agreed deduction was made, for or on account of any of the supposed grounds suggested by their counsel. If they paid less than the amount justly due, the balance is yet due; and they surely cannot claim a credit for more than they themselves admit that they have *147paid. The record of the County Court shows what was due, and the receipts show what was paid, and the insertion of the words, “in full” cannot increase or diminish the amount, or authorize the Court to indulge in conjectures, as to the existence of tacts not charged proven by the defendants, that will carry these words beyond the amount specified, in the body of the receipts, as having been paid. It is evident to the Court that those words were intended only to express that the amount paid was the amount, and only amount, due, when the record of the County Court shows that a larger sum was due and owing.
Besides: the payments were made to guardians of infants, as to all except Sally himself. They were not privy to the receipts, and could not be presumed to know in what form they were written. They could not recover from their subsequent guardians more than came to their hands, and according to the reasoning of the counsel, mustióse the balance, upon the technical ground that they did not charge “a mistake” in the receipt, which had been made erroneously to read “in full,” when the error is made apparent by the record, and stands unexplained by the defendants, in whose possession the receipts were.
The heirs sued for a balance due them; a balance was-, found to be due them; and it was proper to give them a-decree for the amount.
Besides: no rests were made against the guardian in the settlement before the County Court, and after having a liberal allowance made him for services in that settlement, the amount of five per cent, for merely paying out the money to the heirs, allowed by the Circuit Court, was as much or more than was deserving, and the defendants below have no just ground to complain.
We are still satisfied with the opinion delivered, in relation to the decree over against Thomas Simpson,
The petition for a re-hearing is overruled.