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In the judgment for double damages, there is no er-
The law directs it positively.


Judgment affirmed, with costs.




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ERROR to the circuit court for the district of Geor- If an account gia, in a suit in equity.

stated be pleaded in bar to

will be sustain

plainant shall

The bill states that the complainants' testator and the a bill in equidefendant's testator, together with three others, viz. ty, such plea Boisfeillet, Du Bignon, and Grand Closmesle, became ed, except so joint purchasers of the islands of Sapelo, Blackbeard, far as the comJekyll, and half of St. Catharine, on the coast of Geor- show it to be gia; that Dumoussay was the acting partner, and kept erroneous. all the accounts, &c. That an account was stated and signed by the two testators, Chappedelaine and Dumoussay, on the 30th of April, 1792, by which the former acknowledged a balance of 6677. 10s. 1. 3-4d. due to the latter; but that the account was erroneous in sundry items particularly set forth in the bill; that there were sundry debits which had accrued since that settlement, and that Chappedelaine had been obliged, by a suit in equity, to refund to Boisfeillet a large sum which Dumoussay had overcharged him. That Dechenaux was the executor of the estate of Chappedelaine as well as of Dumoussay, and, as executor of Chappedelaine, had defended the suit of Boisfeillet. The bill contains a prayer that the defendant may account touching all moneys due on rectifying the errors; and for all other sums due by Dumoussay in his lifetime, not credited nor accounted for, or which have come to the hands of the defendant, and that he pay over such balance as shall appear on settlement of all accounts, and for general relief. The defendant pleaded the settled account in bar of so much of the bill as sought to open the account, and by answer denied all fraud and error. *Upon hearing, the court below ordered a reference to auditors, with directions "to make a general state

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Chappede- ment of accounts between the parties, rejecting any erroneous charges which may appear in their settlement, Dechenaux. and adding such as may have been omitted."


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The auditors, on the 23d of April, 1805, instead of stating an account, reported that they found "a balance due from the defendant to the complainants, including interest upon the liquidated account up to this date, fifteen thousand five hundred and eighty-six dollars and twenty-two cents." They stated that they had not taken into consideration a claim of the complainants of 1,000l. which the estate of Chappedelaine was condemned to pay to Boisfeillet by decree of the court, nor their claim for indemnity for damages said to have been sustained by sale of lands, conceiving those claims not submitted to them, but reserved for the decision of the


Exceptions being taken to this report, the court ordered the auditors to "make a statement showing the items of the general account, which they rejected, in whole or in part, and the reasons of their rejections, and also such items as were added as omissions, and their reasons for so doing."

In obedience to this order, the auditors made an explanatory report, whereupon the court decreed that 604/. 6s. and 5791. 8s. 1d. be deducted from the liquidated account of the 30th of April, 1792; that interest be allowed on the balance at eight per cent. from that date, and that the defendant pay out of the assets that balance and interest, and the further sum of 3,823 dollars, being the amount stated by the auditors as having accrued since the 30th of April, 1792, and costs.

The errors assigned in the record were,

1. That the bill was insufficient in law.

2. That the court had not jurisdiction; because, although the bill states the complainants to be French citizens, and the defendant a citizen of Georgia, yet the two testators were citizens of Georgia.

*3. That I. Trubert, who is stated in the answer to be residuary legatee of Dumoussay, was not made a party; and because the other legatees were not made par


4. That the stated account has been partially opened, and abatements made to the injury of the legatee.

5. That the exceptions to the report of the auditors ought to have been sustained.

P. B. Key, for the defendant, on opening the ques- Chappedetion of jurisdiction, was stopped by the court.

MARSHALL, Ch. J. The present impression of the court is, that the case is clearly within the jurisdiction of the courts of the United States. The plaintiffs are aliens, and although they sue as trustees, yet they are entitled to sue in the circuit court.

Winder, for the complainants.

As to the allegation of want of parties, it can only be noticed on being pleaded. The defendant cannot now take advantage of it.

We are not, in examining the account, confined to the errors stated in the bill. But if the general nature of the errors is stated in the bill, it is sufficient; and if such errors are proved, it is sufficient to set aside the account as a bar, and to have it referred to auditors; who are not confined to the precise errors alleged in the bill.

MARSHALL, Ch. J. said he understood the practice in chancery to be, that the court will notice only those errors in the report of the auditors which appear úpon the face of the report, or those expressly set down in the exceptions; and then the evidence on which the items were allowed must appear on the record.

Harper and P. B. Key, for the defendant, contended, That an account stated and settled by the parties was conclusive, unless the party complaining can show fraud *or error; and upon him lies the burden of proof. That when a defendant relies upon an account stated, he shall never be compelled to go into a general ac'count. The settled account can only be opened to the extent of the items charged as erroneous. 2 Atk. 1. Summer v. Thorpe. 2 Vez. 565. Pitt v. Cholmondely.

March 4.

MARSHALL, Ch. J. delivered the opinion of the court as follows:

The bill in this case is brought to set aside a stated account which was signed by Dumoussay and Chappedelaine, in July, 1792, on the suggestion of fraud on




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Chappede the part of Dumoussay; or, if it be not set aside, to



correct its errors, and to obtain a settlement of transacDechenaux. tions subsequent to that account.


The stated account is pleaded in bar of so much of the bill as requires that the subject should again be opened, and the particular errors assigned, with the exception of one in the addition, are denied in the an


That the plea in bar must be sustained, except so far as it may be in the power of the representatives of Chappedelaine to show clearly that errors have been committed, is a proposition about which no member of the court has doubted for an instant. No practice could be more dangerous than that of opening accounts which the parties themselves have adjusted, on suggestion supported 'by doubtful or by only probable testimony. But if palpable errors be shown,, errors which cannot be misunderstood, the settlement must so far be considered as made upon absolute mistake or imposition, and ought not to be obligatory on the injured party or his representatives, because such items cannot be supposed to have received his assent. The whole labour of proof lies upon the party objecting to the account, and errors which he does not plainly establish cannot be supposed to exist. Upon this principle, the report of the auditors in this case, and the exceptions to that report, *so far as respects the stated account, are to be considered.

The first exception relates only to the manner in which the auditors understood the order referring the accounts to them, and need not be considered, since the sole inquiry will be, whether they have in fact made any deduction from the stated account which was not warranted by the interlocutory order, an order made on the principles which this court has already declared to be correct..

The second exception refers to the particular deductions made by the auditors. The first is, that the item in the stated account of 604l. 6s. 5d. is reduced to 3331. Os. 8d.

The stated account between the parties, marked in the proceedings as the exhibit A. contains this item, and states it to be one fifth of the expenses for disbursements on the island of Sapelo, which was the




joint property of a company consisting of five, of Chappede. which Dumoussay & Chappedelaine were partners. The items which composed this general account are all Dechenaux, contained in exhibit F. stated by Dumoussay on the 3d of May, 1792, and assented to by Chappedelaine on the 23d of July, 1792, when the stated account was signed. The total of those disbursements is 4,2241. 3s. 8. 1-2d. and the balance upon the account is 3,021/. 12s. 1. 1-2d. the fifth of which is 604l. 6s. 5d.

In their explanatory report the auditors say that they took as the basis of this reduction an account settled by auditors in a suit decided in the circuit court of Georgia, which was instituted by Boisfeillet, one of the absent partners, against Dechenaux, who was executor both of Dumoussay and Chappedelaine. The auditors in that case were examined, and they depose that their corrections were made on the proof of double entries, false charges, omissions acknowledged by the executor of Dumoussay, and charges not proper to be made against Boisfeillet.

This testimony would of itself be sufficient to convince the court that injustice was done in the settlement *of July, 1792, but would not show explicitly the amount of that injustice, and enable them to say what deductions from that settlement ought to be allowed, because, as was well observed by the counsel for Dechenaux, items might be properly chargeable to Chappedelaine, of which Boisfeillet ought not to bear a part.

The court, therefore, sought, in the documents connected with the report, for that more explicit informa❤


Upon looking into the exhibit F. there are, upon the face of the paper, obvious errors, which demonstrate the incorrectness of that statement, and the excessive inattention of Chappedelaine.

The first item on the debit side of this exhibit, is the sum of 3,5717. 38. 8. 1-2d. disbursed for Sapelo. The funds for this disbursement were in part in the hands of Dumoussay, as the remnant of advances previously made by the partners. To this remnant he states him. self to have added 2,368/. 12s. O. 1-2d. from his private funds. On this advance made by himself in Georgia,

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