
    WILLIAM COSTIN & AL vs. WILLIAM BAXTER, SEN.
    Where an “account settled” Is relied on, by way of plea or answer to a bill for an account, it is conclusive, unless the plaintiff can allege and prove some fraud or mistake. And the allegation of such fraud or mistake must state the particular facts of the fraud or mistake.
    The case of Mebane v Mebane, 1 Ire. Eq. 403, cited and approved.
    Cause removed from the Court of Equity of Buncombe County, at the Spring Term 1849.
    By the will of William Baxter, Mrs. Costin and W. G. M. Baxter, his only surviving children, were entitled to his estate. W. G. M. Baxter died intestate. The plaintiff William Costin is his administrator, and Mrs. Costin is entitled to his estate. The bill is filed against the defendant, Who is the executor of William Baxter, for an account. So far as Costin and wife are concerned,he alleges, that, in March 1842, he and the plaintiff Costin, made a statement; that Costin after a full and fair investigation of his accounts, in which he was assisted by an attorney at law, became satisfied that, of the amount which had come to the hands of the defendant, the share, to which he was entitled, in right of his wife, was $756,60, which sum was paid to him, and for which he execuied a receipt in full, under his seal, for his wife’s share of that portion oí the estate, which had come to the hands of the defen* dant, as executor. So far as the plaintiff, as administrator, is concerned, the defendant admits, that, at the time of the settlement, he retained in his hands the share of W. G. M. Baxter; that afterwards the said Baxter died intestate, and the plaintiff demanded the amount of his estate, and received, in 1836, the sum of $770 66 on account of his estate, but, expressing some dissatisfaction, gave a receipt with this reservation : “The above receipt is not to preclude me from recovering any further sum, that I may be entitled to in right of the said W. G. M. Baxter.” The plaintiffs, by an amended bill, insist, that the settlement and acquittance of 1842 should not conclude them, for the acquittance was executed and the settlement made, “upon a total misapprehension of the facts of the case, acquired from the defendant, and through utter ignorance of their rights.” The defendant, in his answer to the amended bill, sets out in detail all the facts, upon which his right to retain certain sums is grounded, and also the facts connected with the slaves Kate and Alin, and avers that the plaintiff, Costin, at the time of the settlement, and when he received the balance and executed the acquittance, had full and correct knowledge of all the facts.
    
      Guión and Gaither, for the plaintiffs.
    
      N. W. Woodjin, and Baxter for the defendant.
   Pearson, J.

The plaintiff as administrator, having reserved the right to recover any further amount, that might be due, and having refused, in that capacity, to acquiesce in the settled account, is entitled to an account of the whole estate. But the plaintiff Costin, having, in right of his wife, made a settlemet, executed an acquittance, and received the balanoe in 1842, as to all amounts received by the defendant at that time, is concluded, andean only have a reference to ascertain, what sums, if any, have since come to the hands of the defendant, or what sums the defendant ought since that time to have collected, with which he was not charged in the settlement of 1842.

When an “account settled” is relied on, by way of plea oi* answer to a bill for an account, it is conclusive, unless ihe plaintiff can allege and prove some fraud or mistake* for, otherwise, he has already had that, which he asks by his bill, having made a settlement and thereby perhaps induced the other party to destroy or surrender his vouchers. “It would be most mischievous to allow the settled account to be set aside, unless from urgent reasons.” Mebane v. Mebane, 1 Ire. Eq. 403. Story’s Eq. 1 vol. 590. Jn this case the plaintiffs allege no particular fraud or mistake, but, in sweeping generalities, “total misapprehension of the facts, acquired from the defendant,and utter ignorance of their rights.” This renders the bill partly defective, for the want of proper allegations, and it is equally defective, as to the proof of any fraud or mistake.

Per Curiam.

Decree accordingly.  