Page:Federal Reporter, 1st Series, Volume 10.djvu/35

pUUilAM V. PTJLIilAM. 28 �into this court, for the purpose of litigating it here, is bound, never- theless, by the litigation in the state court, fropi -which he retnoved it, against some other party, and we are bound by the judgment there, then it follows, of course, that there is no litigation here, and the party who removes the case here does not have any benefit of the removal. It is one of the difficulties ^which grows out of that very anomalous statute providingfor splittingup cases. The beat we can do, I think, is to say that the party, having a right to corne here, has a right to be heard here upon the merits of bis controversy. The adjudication of the state court, I think, is admissible for one pur- pose, and that is to show the ambunt of the recovery, in order that the surety may not, in any event, be held for more than the princi- pal; but for, the purpose of concluding the defendant upon any other issue, we think it is not admissible. ���PuLLUM V. PuLLUM, Ex't, End others. l Circuit Court, W. V. Tennessee. April 26, 1879.) �1. ExECUTOE— Account against, by Lboateb. .. ■ �An account against an executer in behalf of a legatee is a matter of course in a court of cquity. 'X Same— Statute dp LiMiTATioKa'IiroT a Bar to Remedy— RightS Not Babred BY Lapsb dp Time. �The esccutor being an express trustee, the statutes of limitations do not bar the remedy. Lapse of time, under certain circumstances, does bar the remedy. But where an executor qualified December 6, 1865, and made no settlement until July 19 ,1872, because the assets were not collected and the estate not ready for settlement before that time, a bill filed July 7, 1876, was within the strictest rule as to lapse of time, considering the rights of the plaintifC under the will, V. EquiTT Jurisdiction op Federal Courts— Not Affbctbd by SettleIiIents m State Coukts. �A state statute enacting that settlements made in the county court " shall be prima fade evidence in favor of the accounting party," cannot operate 'to re- strict the plenary jurisdiction of the federal courts of equity to enforce the trusts of a will at the suit of a legatee. Those courts will not assume the gen- erai administration of the estate, but will require the exeputor to account 4e now for the purpose of ascerlaining the share due the legatee. 4. Power of Court oveb Sbttled Accounts— Efpect op Want of S'otice of Settlements. �If such a settlement be pleaded as a settled account, the court may, irrespect- ive of any statute, order it to be so takea and to stand before the master as prima fade evidence. But this is nsver done ualess it appears that the legatee had notice of the makingot the aettlementi. ■ ��� �