Page:Federal Reporter, 1st Series, Volume 10.djvu/67

PULLIAU V. PtlLLIAM. S 5 �In Equily. �See the former opinion delivered in this cause, ante, 23, for the iacts. �Wright, Folkes dt Wright, for complainant. �Calvin F. Vance, H. C. Moorman, Harris e Turley, and C. C. Ilarris, for defendants. �Ham.mond, D. J. This cause cornes again before me on exceptions to the report of the special master, John B. Clough, Esq., and on a peti- tion for rehearing as to the question of the money paid to Joel L. Fulliam af ter the bar of the statute in favor of dead men's estates. �I find it unnecessary to determine whether a petition for rehearing can be heard at this stage of the cause. The former decree was only interlocutory, for an account, and on final hearing all questions are open. Fourniquet v. Perkins, 16 How. 82. �LOSSES ON COTTON. �The executor excepts to the master's charge of $6,130.85, losses on cotton belongiug to the estate. I cannot do better than to appro- priate, as the opinion of the court, the report of the master on this subject, it is so thorough and to my mind so conclu si ve an exposition of the f acts as sbown by the proof and the law as I find it af ter a careful examination of the authorities. �Nor do I think the fact that there are no specified allegations in the bill in regard to this cotton alters the case. It is not like a bill to surcharge and falsify a stated accouiit, or to reopen a settlement. It is for an account of this adtainistration de novo, and the plaintiff is in no sense bound by the settlement in the county court of which fihe had no notice, either actual or constructive. As a mere ques- tion of evidence, the settlement in the county court is prima fade ■taken in favor of the executor, but it is not binding on the plaintiff, as it might have been, perhaps, if she had been present or notified. Besides, the proof shows that this executor himself did not know the iacts about this cotton, and how could the plaintiff ? They were dis- closed only by the searching investigation necessary in taking this account before the master. I am satisfied this is not a case for the application of the rule so much relied on, that we must be confined to the bill and issues made by it in taking the accounts. In Badger V. Badger, 2 Gliff. 137, it is distinctly stated that "he had given pub- lic notice to all persons interested," and Lupton v. Janney, 13 Pet. 581, was placed by the court "wholly upon the ground of lapse of ��� �