
    *Robertson & als. v. Wright & als.
    June Term, 1867,
    Richmond.
    1. Administration Accounts — Settlement of — Heirs Not Parties — Effect.—An administration account settled in a cause in which the heirs are not parties, is not prima facie evidence as against the heirs.
    2. Account Stated — What Necessary. — The mere rendering of an account by one party to another, is not sufficient to make it an account stated. For tliat purpose there must either lie an actual statement or adjustment of the account liy the parties by going' over the items together and striking the balance; or an admission by one party of the correctness of the balance struck by the other, or some other evidence to show that the party who is sought to be charged has, by his language or conduct, admitted the correctness of the account.
    3. Account Rendered — Correctness of — Presumption.— If an account has been rendered by one party to another, the court cannot presume, in the absence of all evidence on the subject, that the party who received it has acknowledged its receipt and the correctness of the account.
    Mary Brown brought a suit in equity against Maurice H. Garland, administrator of Archibald Robertson deceased (he being the only defendant), to recover a debt due her from said Robertson as executor of William Brown deceased. Under an order in that cause said Garland settled^ before a commissioner an account of his transactions as administrator of Robertson, which was reported to the court and confirmed by its decree at April term, 1839. One of the items in the account thus settled and confirmed was a credit in the words and figures following:
    *“1835.
    November 17, By S. & M. H. Garland, balance due from them, $1,058.90”
    The said S. & M. H. Garland were attorneys at law in Lynchburg, the members of the firm being Samuel Garland and Maurice H. Garland.
    In September, 1839, Wright and others filed a creditor’s bill on behalf of themselves and all other creditors of said Archibald Robertson deceased, against M. R. Garland, administrator of said Robertson, and the widow and heirs of said Robertson, praying an account and a marshaling of the real and personal estate. M. H. Garland was ordered to settle an account of his administration ; but before the account was settled he died; and in 1841 the suit was revived against Samuel Garland, administrator de bonis non of Archibald Robertson deceased, and executor of Maurice H. Garland deceased. In 1842 the cause came on to be heard in the Circuit superior court of Amherst county, along with the case of Brown v. Robertson’s administrator, which had been likewise revived against Samuel Garland, administrator de bonis non of Robertson, and an order was made directing said Garland to settle an account of M. E. Garland’s administration of‘Robertson’s estate to the time of his death, which took place in 1840, and also an account of his own administration of the same estate.
    Commissioner Brown, in stating the account of M. H. Garland’s administration under this order, adopted the account settled in Brown v. Robertson’s administrator, as above mentioned, as far as it went. The widow and heirs of Robertson, who appear not to have been represented before the commissioner, filed exceptions to this report, and particularly in reference to the credit of $1,058.90, adopted from the account settled and confirmed in Brown *v. Robertson’s administrator, and to various items in the account of S. Sc M. H. Garland with Archibald Robertson, out of which the said balance of $1,058.90 arose. This report was re-committed by consent of parties, without any decision upon the exceptions. In the course of the proceeding's, Samuel Garland insisted by his exceptions and by his answer, that the account settled and confirmed in Brown v. Robertson’s administrator was conclusive upon the parties in that cause and their privies; that all the creditors of Robertson were such privies; and also that as no specific errors were alleged in the bill, the said account could not be disturbed. Commissioner Brown, in his second report, held these positions of Samuel Garland to be untenable, and proceeded to investigate the account between S. & M. H. Garland and Robertson ; Samuel Garland expressing his willingness to correct any errors that might appear in said account. The commissioner reported numerous errors in said account, some being erroneous charges and others being omissions of credits and short credits. This report was also re-committed without a decision upon the exceptions, and the case was referred to Commissioner Tinsley, with instructions to report upon the exceptions and the case generally.
    Commissioner Tinsley made a report in 1849, in which he treated the account in Brown v. Robertson’s administrator as entitled to the weight of a settled account; that is to say, as prima facie correct, but liable to be impeached by evidence. And he held that this principle applied to the account of S. & M. H. Garland and Archibald Robertson, out of which the balance of $1,058.90 arose. He sustained some of the objections to that account, as to which he thought the evidence sufficient to impeach it, and overruled others as to which he thought the evidence insufficient for that purpose. Among the subjects of ^exception in the account between S. & M. H. Garland and Robertson, were two charges of $117.95 and $950, the former for the amount of John Major’s execution against Robert Tinsley, the latter for cash lent. As to the former the question was whether the Garlands had author-itjr to charge Robertson with the amount of Tinsley’s debt to Major; and as to the latter the question was whether the loan had been repaid. The commissioner was of opinion that the former item could not have been allowed without further proof, if it had been objected to in Brown v. Robertson’s administrator. As to the latter, he seems to have thought the case doubtful upon the evidence. But he allowed both items, upon the ground that they had been allowed in the account settled in Brown v. Robertson’s administrator. These were the only items in the account between S. & M. H. Garland and Robertson which were the subject of controversy in this court.
    Samuel Garland excepted to this report as far as it varied the account in Brown v. Robertson’s administrator, except where said account might be found erroneous on its face, there being no allegations of surcharge or falsification. He further objected to any change in the account between S. & M. H. Garland and Robertson, upon the further ground that said account had been rendered to said Robertson several years before his death, and had been held by him until his death without objection.
    It appeared from the evidence that Samuel Garland addressed a letter to Archibald Robertson, without date, covering a copy of the account between S. & M. H. Garland and said Robertson from February, 1827, to April 1, 1831, which showed a balance due to Robertson on that day of $2,014.07. The charges in this account consisted of lawyers’ fees, costs and other expenses, payments to Robertson, and payments of debts of Robertson, *and the credits of moneys' collected for Robertson. There was a further account between S. & M. H. Garland and Robertson, after April, 1831, extending down to the death of the latter in June, 1835, which showed, besides fees and expenses, charges for large sums paid upon debts of Robertson. After April 1, 1831, there were charges for sums lent to Robertson, but no charges for sums paid to him. From these and other facts in the cause, it seemed that the funds of Robertson in the hands of S. & M. H. Garland were left in their hands by him to be applied by them to the payment of his debts.
    The account rendered by S. & M. H. Garland was found among Robertson’s papers after his death. It did not appear when it was rendered, but this court treated it as having been rendered in 1831. There were also found among Robertson’s papers memoranda made by him of various objections to the said account, and among the items objected to were those of $117.95 and $950, above mentioned. It did not appear whether Robertson did or did not communicate to S. & M. H. Garland any objection to said account, or whether he did or did not have’any communication with them, or either of them, on the subject of the Said account, or of the money due upon it, after it was rendered. There was a total absence of evidence on these points. Robertson resided in Amherst county, a short distance from Lynchburg.
    The widow and heirs of Robertson excepted to the report of Commissioner Tins-ley, upon the ground, among others which need not be stated, that the said ' sums of $117.95 and $950 had been charged to Robertson. The Circuit court overruled these exceptions, and the widow and heirs appealed.
    The case was argued in this court, in print, by Mosby, for the appellants, and by Garland and Slaughter, for *the appellees; and orally by Jones, for the appellants, and by Garland and Tucker, for the appellees.
    It was contended by the counsel for the appellees, that the account rendered by S. & M. H. Garland to Robertson ought to be treated as an account stated, and, therefore, prima facie correct: for which they cited Willis v. Jernegan, 2 Atk. R. 252; Langdon v. Roane’s adm’r, 6 Alab. R. 518; Murray v. Toland, 3 John. Ch. R. 569; Chappede-laine v. Dechenaux, 4 Cranch R. 306; Townes v. Birchett, 12 Leigh 173.
    On this point the counsel for the appellants contended, that except between merchants dealing with each other as such, the rendition of an account and its retention without objection, did not give it the effect of an account stated; for which they cited the opinion of Allen, J., in Townes v. Birchett, 12 Leigh 173, 199, 200, and the case cited there. They said that this doctrine was not inconsistent with the decision of the court in that case, because the majority of the court treated the parties as merchants, and also relied upon other circumstances besides the retention of the account without objection to'show that it had been approved. They also cited the remarks of Moncure, J., in Tazewell’s adm’r v. Whittle’s adm’r, 13 Gratt. 349.
    The counsel for the appellees contended that the account settled in Brown v. Robertson’s administrator having been settled under the authority of a court of chancery and approved and confirmed by it, was entitled at least to the same prima facie presumption in favor of its correctness as an account settled ex parte before commissioners of the court of probate; as to which it is well settled in Virginia and elsewhere, that such a presumption exists. They referred especially to Newton v. Poole, 12 Leigh 112, to show the grounds of that presumption.
    counsel for the appellants replied that the effect given to ex parte settlements was founded more on long usage than" upon principle (Anderson v. Pox, 2 Hen. & Mun. 245), and that besides in such a case any party interested may intervene and controvert the settlement either before the commissioners or before the court; whereas nobody but the parties had a right to interfere, in the settlement before the commissioner in Brown v. Robertson’s administrator, or to except to the account when reported.
    The counsel for the appellees further contended that, the correctness of the said account could not be inquired into in this case, because no specific errors were alleged in the pleadings. The counsel for the appellants upon this point cited Shugart’s adm’r v. Thompson’s adm’r, 10 Leigh 434. This point was not noticed by this court, probably because it held that the account was not to be regarded as either a settled account or a stated account.
    
      
       Accounts Stated — Confirmed by Court -Effect on Persons Not Parties to Suit. — In 4 Min. Inst. (3d Ed.) 1485, 1486, it is said: “An account formerly stated in pursuance of a decree of court, in a suit inter partes, although confirmed by the court, is not even prima facie evidence against persons who were not parties to the first suit, nor in privity with any party thereto. (Mason v. Peters, 1 Munf. 437; Street v. Street, 11 Leigh 498; Robertson v. Wright, 17 Gratt. 540; Deneale v. Stump, 8 Pet. 528.) On the other hand, an ex parte settlement, officially made, is prima facie evidence of the several charges and credits contained therein (2 Rob. Pr. (1st Ed.) 113; Boyd v. Oglesby, 23 Gratt. 689; Leake v. Leake, 75 Va. 803); an effect which has been referred to the long-established practice of the country (Newton v. Poole, 12 Leigh 142; Leake v. Leake, 75 Va. 803); although it would seem rather to proceed from the principle that such ex parte proceedings are in rem, and, therefore, obligatory alike upon everybody. (1 Greenl. Ev. §§ 541, 544 et seq.; 7 Rob. Pr. 306, 324, 345, 350, etc.; ante, p. 888.) But to whatever principle referrible, the doctrine in Virginia is confirmed expressly by statute, when the court has approved the report of the commissioner. (V. C. 1873, ch. 128 § 29, V. C. 1887, ch. 121, § 2699.)”
      But the ex parte settlement of the fiduciary is only prima fade correct, and parties interested may file a bill to surcharge and falsify the account so settled. Corbin v. Mills, 19 Gratt. 438, and foot-note, where there is a collection of cases in point.
      See generally, monographic note on “Commissioners in Chancery” appended to Whitehead v. Whitehead, 23 Gratt. 376.
      Judgments against Personal Representatives — Heirs Not Parties — Effect.—In Brewis v. Lawson, 76 Va. 40, the court said: “A judgment (by default at least) against a personal representative in a suit to which the heirs or devisees of the decedent are not parties, is not evidence against such heirs or devisees in a suit or proceeding by the creditor to subject tbe real estate, descended or devised, to tbe payment of tbe debt; and the reason assigned is, that there is no privity between tbe representative and such heirs or devisees. It was so held by this court at an early day (1810) in Mason’s Devisees v. Peter’s Adm’r, 1 Munf. 437, and the decision has been since repeatedly recognized as authority. See Foster, etc., v. Crenshaw’s Ex’ors, 3 Munf. 520; Chamberlayne, etc., v. Temple, 2 Rand. 384, 396; Shields, Adm’r, v. Anderson, Adm’r, 3 Leigh 729, 736; Street’s Heirs v. Street, 11 Leigh, 498, 508; Robertson and others v. Wright and others, 17 Gratt. 534, 540. Chief Justice Marshall, in delivering the opinion of the supreme court in Deneale v. Stump’s Ex’ors, 8 Peters 531, said: ‘It is understood to be settled in Virginia, that no judgment against the executors can bind the heirs, or in any manner affect them. It could not be given in evidence against them.’ ”
      In Laidley v. Kline, 8 W. Va. 229, the court, citing among others the principal case said; “On a bill by a simple contract creditor against heirs or devisees to marshal assets, there must be proof of the justice of the plaintifE’s claim. It will not be sufficient to produce a judgment at law against the executor. There being no privity between the personal representative and the party to whom the real estate has descended or been devised, the judgment against such personal representative is no proof as against the beir-pr devisee.” See also, the principal case cited as to this point in Carey v. Roosevelt, 81 Fed. Rep. 609.
    
   JOYNES, J.,

delivered the opinion of the court:

The court is of opinion that the account of Maurice H. Garland, administrator of Archibald Robertson deceased, settled under the decree of the court in the suit of Mary Brown against Archibald Robertson’s ad-ifainistrator, is not, by reason of its having been settled in that suit and confirmed by the . court, even prima facie evidence as against the heirs at law of said Archibald Robertson, of the balance credited in said account as due from S. & M. H. Garland to said Archibald Robertson, or of the items of account out of which the said balance arose, because the said heirs were not parties to said suit, and were not in privity with any party thereto, so as to be bound or affected by anjr ■ proceeding therein. Mason’s devisees v. Peter’s adm’r, 1 Munf. 437; Street’s heirs v. Street, 11 Leigh 498; Deneale v. Strump’s ex’ors, 8 Pet. R. 528.

*And although it appears that a partial account between the said S. & M. H. Garland and said Archibald Robertson, embracing the items now in controversy, was rendered by the said S. & M. H. Garland to the said Archibald Robertson in the year 1831, the court is of opinion, for reasons hereafter stated, that the same ought not to be regarded as an account stated between the said parties, so as to be prima facie evidence of the correctness of the charges therein, which are now in controversy, namely, the charge of $117.95 and the charge of $950, and to throw upon the said Robertson’s representatives the burden of disproving the same.

The court is of opinion that the mere rendering of an account by one party to another, is not sufficient to make it an account stated. Eor that purpose there must either be an actual statement and adjustment of the account by the parties by going over the items .together and striking the balance, or an admission by one party of the correctness of the balance struck by the other, or some other evidence to show that the party who is sought to be charged has, by his language or conduct, admitted the correctness of the account.

It does not appear that the said Archibald Robertson admitted, by words, the correctness of the said account rendered, nor does it. appear whether he did or did not communicate to the said S. & M. H. Garland any objection to it. On this latter subject there is a total absence of all evidence, though it does appear that he made and preserved memoranda of various objections to said account; the two items above mentioned being among those to which he thus made objection. It cannot be presumed that no such communication ivas made from the fact that none is proved, because it might well have been made without its being possible for the appellants to prove the fact, and the saidS. & M. H. Garland have produced no *evidence whatever on the subject. And even if such a presumption could be made, it would not be competent to found upon it a further presumption, that the said Robertson admitted the correctness of the account rendered, for that would be to base a presumption upon a presumption, contrary to the rules of evidence, and would moreover be in conflict with the express proof afforded by the memoranda aforesaid, that he did not admit it. Whether the failure of said Archibald Robertson ■ to communicate to said S. & M. H. Garland his objection to said account rendered, if it had been established by proper evidence, would have been sufficient, without the help of other circumstances, to give to the said rendered account the effect of an account stated, the court does not think it necessary to decide. Vide Irvine v. Robertson, 3 Rand. 549; Irvine v. Young, 1 Sim. & Stu. R. 333; Lord Clancarty v. Latouche, 1 Bal. & Beat. R. 420; Townes v. Birchett, 12 Leigh 173; Toland v. Sprague, 12 Pet. R. 300; Murray v. Toland, 3 John. Ch. R. 569; Phillips v. Belden, 2 Edw. Ch. R. 1; Killam v. Preston, 4 Watts & Serg. R. 14; Spangler v. Springer, 22 Penn. R. 454.

And the court is further of opinion, that this case does not come within the principle laid down by this court in the case of Mertens v. Nottebohm, 4 Gratt. 163, namely, that an account rendered by a consignee, factor, agent, attorney, trustee, or the like, of his acts and transactions in the execution of his agency or trust, is to be taken to be prima facie correct. Por as to the item of $117.95, the question in controversy is, not whether the said S. & M. H. Garland paid it under an admitted authority, but whether they had the authority to pay it; and as to the item of $950, the question is, whether a sum of money advanced by said S. & M. H. Garland to Archibald Robertson as a loan has been repaid to them.

court is further of opinion that there is no sufficient evidence that the said sum of $117.95 charged by said S. & M. H. Garland against said Archibald Robertson, for the amount of John Major’s execution against Robert Tinsley was properly so charged.

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Decree reversed with costs so far as declared to be erroneous, and affirmed as to all other things, and cause remanded.

Decree reversed.  