ACCOUNT SETTLED. ACCOUNT MCKELLAR V. WALLACE 1 2. The parties had settled their accounts by striking a general balance, reserving one item for future investigation which afterwards was also settled by a promissory note. This promissory note not having been paid at maturity, one of the parties brought an action to re-open the accounts. It was held that the settlement amounted to an ajustment of the general account between them, and that the accounts so closed could not, in the absence of false representations and fraud, be re-opened because the note had been dishonoured. THE RIGHT HON. T. PEMBERTON LEIGH, p. 401:-The law in cases of this kind I apprehend to be perfectly clear. Parties having accounts between them, may meet and agree to settle those accounts by the ascertainment of the exact balance; and, if they mean to ascertain the exact balance, it may be necessary for that purpose, and probably is necessary in most cases, that vouchers should be produced, and that all the information which is possessed on one side and the other should be furnished in the settlement of those accounts; and, if it afterwards turn out that there are errors in the account, it is a sufficient ground for opening the account and for setting it right in a court of equity. If, on the other hand, persons meet and agree, not to ascertain the exact balance but agree to take a gross sum as the balance; a sum which one is willing to pay, and the other is content to receive as the result of those accounts; it is obvious, that the production of vouchers is entirely out of the question, and errors in the account are so also, for the very object of the parties is to avoid the necessity for producing those vouchers, upon the assumption that three are or may be errors in the account so settled; therefore, it is either an account stated and settled, in the formal sense of that expression, or, it is the case of a settlement by compromise. In either case it may be vitiated by fraud; in either case it is good for nothing, if, either from the collusion of the parties, upon the circumstances under which the settlement takes place, it is proved, in a Court of Equity, that the transaction was not so fairly and so fully understood between the parties, either from the confusion in which it was involved, or from misrepresentations made on the one side or the other, as it ought to have been, and that injustice has been done to either side. BOOKS OF ACCOUNT. SEETUL BAHOO V. HURKISHEN Doss 2 3. In a case of rendering of account, a court should not deliver its judgment before the original books of account 1 Calcutta, 1853 June 20, VIII Moore 378. 2 Bengal, 1834 Feb. 8, III Knapp 255. BOOKS OF ACCOUNT. have been inspected and verified, unless by some means it can be satisfied, that there is no ground whatever in the objections made by the opposing party. The record was sent to the court below for the inspection of the original books of the firm in litigation. DEFAULT OF THE ACCOUNTING PARTY. RETEMEYER V. OBERMULLER 1 4. The accounting party having made default to render his accounts in the form ordered by the court, after the rejection of his first account which were only intromissions in his qualities, was condemned and his property seized and placed in custody to abide the sentence of the court. On an appeal and cross-appeal, the Privy Council, setting aside all objections, reviewed the items of the account fyled. The Appellant and the Respondent succeeding in part, no cost were awarded. DUTY OF AGENT TO. See PRINCIPAL AND AGENT: iisdem verbis. ERRORS IN ACCOUNTS. DANIEL V. SAINCLAIR 2 5. A settled account may be re-opened to correct mistakes when both parties misunderstood the facts and the law, and compound interest was charged instead of simple interest. 6. In the absence of special understanding simple interest only can be charged. 7. There are cases in the courts of common law in which it has been held that money paid under a mistake of law cannot be recovered, and it has been further held that, under certain circumstances, the giving credit in an account may be treated as so far equivalent to payment as to prevent sums wrongly credited being made the subject of set-off. Skyring v. Greenwood 4 B. & C. 281. But in equity the line between mistakes in law and mistakes in fact has not been so clearly and sharply drawn; and in a great many cases relief has been and can be given to a party who has dealt with his property under the influence of a mistake. Earl-Beauchamp v. Winn, Law Rep. 6 H. L. 234; Cooper v. Phibbs, Law Rep. 2 H. L. 170; McCarthy v. Decain, 2 Russ & Muy 614; Livesey v. Livesey, 3 Russ 287. 1 Berbice, 1838 Feb. 8, II Moore 93. New Zealand, 1881 Feb. 22, L. R. VI Appeal Cases 181. JOINT ACCOUNTS. LINDSAY V. DUFF 1 1 8. According to the principles of English law, parties subject to a joint account are liable jointly and severally. 9. And where a case has been decided by the Privy Council under the English law and rules of procedure, the court below is wrong in applying the Roman-Dutch law to the proceedings in execution of the judgment. PRESCRIPTION. SMITH V. O'GRADY 2 10. Lapse of time will not alone be a bar to the right of an executor to have an account of the testator's estate taken with a view to ascertain his liabilities. WHO IS LIABLE TO RENDER ACCOUNT. ERMATINGER V. GUGY 3 11. A clerk and manager of a sheriff, who received and paid, in that capacity, various sums of money in the course of the business of the office, is not liable to an action or bill for account. LORD CAMPBELL, p. 14:-There is no doubt that where a person is employed by another to transact business for his employer, and is allowed to have money in his hands, in the character of agent or clerk, he is liable to account for such money. But there is a great difference between a party so circumstanced, and one who, being immediatly under the eye of his employer, and subject to his daily control, keeping, in fact, not his own, but his employer's accounts, entering them in his master's books, and giving over the vouchers and receipts to his custody. Whether such a dealing can constitute the relation of agent and principal, so as to make the former liable to an action, or bill for account, must depend on the especial facts of the case; prima facie, such liability would not exist. BY SILENCE. ACQUIESCENCE 4 THE EAST INDIA COMPANY V. ROBERTSON ET AL. 12. In Madras, the government of the East India Company created a civil service annuity which was to be provided half by subscriptions from the civil employees and half by the company. The subscriptions came in excess of what was 1 Ceylon, 1862 June 20, XV Moore 452. 2 Jamaica, 1870 July 7, VII Moore N. S. 106. 3 Lower Canada, 1844 Nov. 30, V Moore 1. 4 Madras, 1859 March 17, XII Moore 400. BY SILENCE. required for the share of the civil servants, and the trustee introduced the practice of refunding part of the money paid by the civil servants when an excess of subscriptions had been paid beyond the half value of the annuity. The Privy Council, on account of this uncontested practice, held that the company had, by their conduct, acquiesced in it and precluded themselves from disputing the right of the subscribers to the refund, although no law or rules authorized such refund. IN JUDGMENT. LOUGHNAN V. HAJI JOOSUB BHULLADINA. The "HYDROOS 13. A special application for costs made by a losing party in a suit, after the rendering of the judgment, is an acquiescence in the judgment, and is a bar to a demand for leave of appeal. 2 BROWN V. DAVENPORT 14. The taxation and receipt of the bill of costs is an acquiescence in the judgment, which prevents an appeal. 15 Ajudgment of the Prerogative Court of York, granted the probate of a will with costs to be paid out of the Testator's estate to both parties. These costs were taxed and paid, both proctors attending. About ten months after, application was made by the party originally opposing the will for leave to appeal. Such application refused, on the ground that according to the universal practice of the Judicial Committee, the taxation and receipt of the costs was an acquiescence in the sentence, and perempted the appeal. BEAUDRY V. THE MAYOR & AL, OF MONTREAL 3 16. A mere respectful submission to the ruling of a court or of a judge is not an acquiescence in the legal sense. LORD CHIEF BARON POLLOCK, p. 426 :-It seems to us that when the justices decided that they had no power to administer an oath, and, therefore (as we consider), declined to swear the witnesses and receive their testimony, the claimant could do nothing more than he did, it was not his business to protest a court, but respectfully to submit to a legal decision. In order to prove that he acquiesced, and waived his right to complain of an illegal decision, it ought to be shown that he said or did something to give the 1 Bombay, 1851 Feb. 18, VII Moore 373. 2 York, 1857 July 21, XI Moore 297. 3 Lower Canada, 1858 Feb. 5, XI Moore 400. IN JUDGMENT. court a jurisdiction which the act in question did not give them. Mere respectful acquiescence, or submission to the ruling of the justices, will not, we think, amount to a waiver. THE "BRINHILDA" 17. When a judgment grants damages without assessing them, the demand by one of the parties for an assessment of the damages amounts to acquiescence in the judgment, and his right of appeal is thereby perempted. The ship Clifton, 3 Knapp P. C. 375; 3 Hagg. Adm. 117. IN PLEADINGS. See PRACTICE: iisdem verbis. OPERATES AS A RELEASE. MOTZ V. MOREAU 2 18. A settlement by a minor with his tutor, based on an inventory incorrectly made, accounts illegally rendered, although voidable, cannot be set aside if evidence shows that subsequent transactions had taken place between the minor and tutor, after the former was of age. These transactions amounting to a release of all claims on the part of the minor. Claims although not barred by prescription may be extinguished by release or destroyed by conduct operating as a release. 19. The fact that such assignments and dealings had not been impugned by the minor, when of age, until after the death of the tutor, speaks strongly against the claim of the minor for an account and inventory, and to set aside the assignments. POWER TO ACQUIESCE. LA BANQUE JACQUES-CARTIER V. LA BANQUE d'ÉPARGNE DE 20. Where a manager of a bank has made entries in the books of the bank, so as to represent the bank as a debtor, in respect of a sum which he had borrowed for his own purposes, the acquiescence and ratification by the silence of the subsequent liquidating authorities, would not render the bank liable to pay a debt which it never owed, as the liquidators could not bind the bank by their acquiescence. The doctrine of the court below overruled. 1 V. Admiralty, 1881 March 15, XLV Law Times N. S. 389. 2 Lower Canada, 1859 July 7, XIII Moore 376. 3 Québec, 1887 Nov 15, L. R. XIII Appeal Cases 111. |