ON MOTION FOR REHEARING.
Bland, P. J.— The final settlement of Stuart as administrator of the estate of Rachel Stuart is of no material importance in this case, since the item sued *187for in this action is not embraced in or adjudicate d by that settlement. The receipt produced on the trial by respondent is more than a receipt for $750. It purports to be a receipt in full of Cardwell’s share of the estate of Rachel Stuart. It is prima facie evidence, at least, of a settlement made between him and Stuart and of an ascertainment of the amount due and of payment of that amount.
To entitle Cardwell to overcome this prima facie defense, proof should have been introduced impeaching the receipt or a judgment of a court of equity setting it aside. Neither was done on the trial, or attempted to be done. Judge Biggs is of the opinion that the plaintiff; must first set aside the compromise or settlement receipt of $750 in a court of equity before he can recover in this action, and cites Jones v. Higgins, decided by this court at the October, 1897, term of this court, and Hancock v. Blackwell, 41 S. W. Rep. 205, in support of this view. To prevent what might turn out to be a failure of justice, we reverse the cause for retrial.
All concur.