(A) ACCOUNTS.

the other died after some years, leaving B. surviving. An action was commenced, asking for the general execution of the trusts of the will. The court, under Ord. LV. r. 3, sub-s. 10, ordered only certain special inquiries, among which was an inquiry whether new trustees had been appointed, and whether any or what steps ought to be taken for their appointment. Pending this inquiry B. appointed a new trustee. The plaintiffs now moved to restrain the funds being handed to him and his acting as trustee-Held, that the special inquiry made it the duty of B. not to fill up the appointment without the approval of the court, but that the power was not destroyed; all that was necessary was for B. to appoint a person whom the court would approve, and it not being alleged that the trustee was an improper person, the court would not interfere with the appointment, and it was not necessary formally to sanction it. Hall, In re, Hall v. Hall, 51 L. T. |

901.

new

1. Jurisdiction.

a

the completeness of the relief at law is doubtful, and questions of account, of the right to raise a case of wilful default, and of fiduciary relationship between the parties are involved, the court will entertain suit for the purpose of transferring the proceedings from law to equity, and will grant an injunction until the hearing. Southampton Dock Co. V. Southampton Harbour and Pier Board, L. R. 11 Eq. 254; 23 L. T. 698. And see Carlisle Corporation v. Wilson, 13 Ves. 276; A.G. v. Dublin Corporation, 1 Bligh (N.s.) 312; 30 R. R. 43.

Only accounts of a simple nature are taken in the King's Bench Division. York V Stowers, 1883 W. N. 174.

Bill by Principal against Agent.]-The bare relation of principal and agent is not sufficient to entitle the former to relief in

District Registrar-Jurisdiction to Order Account.]-By virtue of rr. 1a and 4 of Ord. XXXV., a district registrar has power to make an order for an account under r. 1 of Ord. XV., and if the order so directs (but not otherwise) he can then proceed to take the account himself. Bowen, In re, Bennett v. Bowen 51 L. J., Ch. 825; 20 Ch. D. 538; 47 L. T. 114.

Form of Report.]—In making a report to the court under s. 66 of the Judicature Act, 1873, of the result of an account in an administration action, the district registrar ought to adopt the form of a chief clerk's certificate, and to state in the report the persons who were present before him, and the materials upon which he proceeded. Ib.

Court Favours Jurisdiction.]-The court will endeavour to assume jurisdiction in matters of account where doing so will pro mote substantial justice between the parties. Dabbs v. Nugent, 11 Jur. (N.s.) 943; 13 L. T. 396; 14 W. R. 94.

Concurrent Jurisdiction of Courts of Law and Equity.]-In matters of account courts of law and of equity have, generally speaking, a concurrent jurisdiction, and in deciding whether the account shall be taken by a plaintiff in equity, or not, the court will be guided by a consideration of what is best, with a view to the convenience of the parties. Shepard v. Brown, 1 Giff. 208; 7 L. T. 499; 11 W. R. 162. And see Scott v. Liverpool Corporation, 28 L. J., Ch. 230; 5 Jur. (N.s.) 105; Hill v. South Staffordshire Ry., 11 Jur. (N.s.) 192; 12 L. T. 63, and N.E. Ry. v. Martin, 2 Ph. 758.

Jurisdiction, when Exercised by Courts of Law.]-When a court of law can do as full justice to the subject in dispute as can be done in equity, this court will not interfere to stay the proceedings at law. But when

1

Money Demand.]-Although the Court of Chancery has jurisdiction to entertain a bill for an account by a principal against an agent, it will not do so when the claim is a mere money demand which may be perfectly well ascertained at law. Barry v. Stevens, 31 L. J., Ch. 785; 6 L. T. 568; 10 W. R. 822.

Bill by Agent against Principal.]—A bill by an agent against his principal prayed a discovery and an account. The right to discovery was not strenuously denied by the defendant, but he demurred on the ground that the account ought to be taken at law, and that the court had no jurisdiction. Demurrer overruled. Shepard v. Brown, 7 L. T. 499; 11 W. R. 162.

An agent cannot file a bill against a principal, or a principal against an agent,

for an account, except in the case of complicated accounts, where there is an insufficient remedy at law. Blyth v. Whiffin, 27 L. T. 330.

Executor of Parties in Jamaica-Bill in

England.1-A plaintiff being in England, filed a bill for an account against the executors of a deceased partner, some of whom were in England, but acting in concert with the others, who were in Jamaica; the partnership property being also in Jamaica : -Held, upon a plea to the jurisdiction by the executors resident in Jamaica, that the suit was properly instituted in this country. Hendrick v. Wood, 30 L. J., Ch.

583.

Admission of Balance under Contract.]— An admission by a company that there is a balance in the company's hands arising out of a contract with the plaintiff, is sufficient to give a court of equity jurisdiction and a

Bankruptcy or Chancery Composition with Creditors.]-A plaintiff had made a composition with his creditors, under which he paid them 8s. in the pound, and was released from his debts. One of the creditors was the defendant, who had been agent for the plaintiff, and claimed from him a balance of £300, on which he received the composition. The plaintiff afterwards filed a bill against the defendant, alleging that he had made overcharges, and asking for an account and payment of the balance. Overcharges were shown :-Held, that the Court of Chancery had jurisdiction in the matter, and that the plaintiff was not obliged to apply to the Court of Bankruptcy; that the composition deed was not a bar to the suit, and that the defendant could not set up any rights of the creditors in bar of the suit. Pike v. Dickinson, 41 L. J., Ch. 171; L. R. 7 Ch. 61.

Jurisdiction ousted by Agreement to refer to Arbitration.]-An agreement to refer under the Railway Companies Arbitration Act, 1859, if insisted on, ousts the jurisdiction of the court. Watford and Rickmansworth Ry. v. L. & N. W. Ry., 38 L. J., Ch. 449; L. R. 8 Eq. 231; 21 L. T. 81; 17 W. R. 814.

Service of Decree.]-The effect of service of a decree under 15 & 16 Vict. c. 86, s. 42, r. 8, is to bind the interest of the party served in the subject-matter of the suit, and not to impose on him any liability to account. Walker v. Seligmann, 40 L. J., Ch. 601; L. R. 12 Eq. 152; 25 L. T. 294.

2. WHO MAY BE COMPELLED TO ACCOUNT. Agent.]-In a bill for an amount of moneys received by the defendant as agent, the existence and character of the agency must be distinctly shown. Hemings v. Pugh, 9 Jur. (N.S.) 1124; 9 L. T. 283.

Fraud or misrepresentation need not be charged. Makepiece v. Rogers, 34 L. J., Ch. 396; 12 L. T. 221.

A party filed a bill against persons who claimed various interests in a fund then in his hands, praying for an account, and that

the rights of such persons might be ascertained, and for an injunction to restrain an action which had been brought against him by one of such persons for the recovery of the fund, to which action the plaintiff had pleaded equitable pleas. The plaintiff admitted by his bill that he held the fund as agent or trustee, and himself claimed an interest :-Held, that he entitled to maintain his bill, being in the nature of a bill of interpleader, to ascertain his rights as well as those of third parties. Blyth v. Whiffin, 27 L. T. 330.

was

When a bill against an agent, for an account, alleges certain specific questions that have arisen as the ground for taking the account, and these questions are decided against the plaintiff, the bill will be dismissed. Great Western Insurance Co. of New York v. Cunliffe, 43 L. J., Ch. 741; L. R. 9 Ch. 525; 30 L. T. 661.

When a defendant, who was agent for trustees of a trust estate, admitted that he was liable to account, and that he had in his possession securities belonging to the trust estate, the court on motion by the trustees, notice of which was given to the defendant, made an order directing him to account and to hand over the securities. Rumsey v. Reade, 45 L. J., Ch. 489; 1 Ch. D. 643; 33 L. T. 803; 24 W. R. 245. Where in the case of a conversion by two joint tort-feasors, one of whom, as between themselves, has acted as principal and one as agent, the injured party elects to waive his remedy for damages against the agent and to proceed against him by way of account, the injured party is entitled to demand from such agent an account of so much of the converted property, or of its proceeds, as may still be actually remaining in his hands at the time of taking the account. But he is not entitled to demand an account of so much of the converted property, or of its proceeds, as such agent has duly handed over, in the course of his agency to his principal. Ely, In Trustee, Ex p., 48 W. R. 693—C. A.

re,

Discovery.]-It does not follow that, because a principal is entitled to have an account taken in equity as against his agent, the agent has a similar right against his principal; for the right of the principal rests on the trust and confidence reposed in the agent, but the agent reposes no such trust or confidence in the principal. Padwick v. Stanley, 9 Hare, 627; 16 Jur. 586.

Plaintiff had advanced to the defendant various sums of money, and procured other sums to be advanced to him on bills and notes on which the plaintiff was liable. These transactions extended over a long time, and the defendant had the documents necessary to take the accounts satisfactorily. The bill thereupon prayed an account and discovery, and to have the bills, &c., paid off, and the plaintiff discharged from his liability: -Held, on demurrer, that these were not such accounts as entitled the plaintiff to relief, whatever might have been the event had discovery alone been prayed. Ib.

defen

- Traveller-Commission.]-The dants, a mercantile firm, employed the plaintiff as their traveller and agent, under an agreement that he should receive a commission of 7 per cent., and an allowance of 3 per cent. on all orders received from his friends first introduced by him. Disputes having arisen between the parties, the plaintiff filed his bill, praying for an account of this commission and allowance, but the bill did not allege that there was any obligation on the part of the defendants to keep the accounts, or that there was any mutuality or complexity of accounts-Held, that the plaintiff's bill must be dismissed, and with costs, as the bill presented a case merely of contract on the part of the defendants to pay a certain commission, for which the proper remedy would be by an action. Smith v. Leveaux, 9 L. T. 313; 12 W. R. 31.

See also PRINCIPAL AND AGENT.

Company.]-A company was bound by an Act incorporating it, in case the annual income of a board should in any one year fall below £1,000, to pay to it such an annual sum as should make up the deficiency, such annual sum to be paid in preference to the dividends payable by the company to its own proprietors. No demand was made by the board upon the company in respect of the deficiency until 1870, when an application was made, and subsequently an

action was brought

by the board against the company for an aggregate sum representing the deficiencies arising in the receipts of the board from 1847 to 1858, during which time dividends had been paid by the company. The company filed a bill charging wilful default, and praying an account against the board on that footing-Held, that the company was not bound before declaring its own dividend to inquire of the board whether they had any claim against them in respect of the deficient income, and that the board was debarred by laches from enforcing any claim prior to 1858. And the court, being satisfied as to the wilful default, directed an account on that footing from 1858. Southampton Dock Co. v. Southampton Harbour and Pier Board, 41 L. J., Ch. 832; L. R. 14 Eq. 595; 26 L. T. 828; 20 W. R. 940.

Copyright-Infringement of.]-A plaintiff who complains of a piracy of his work, has no remedy in equity, unless he establish a title to an injunction, and then the account will follow. Baily v. Taylor, 1 Russ. & M. 73; Taml. 295; 8 L. J. (o.s.) Ch. 49; 31 R. R. 104.

See COPYRIGHT.

Covenant not to carry on Trade.]-Bill for an account under covenant upon sale of goodwill not to carry on the trade. Scott v. Mackintosh, 1 Ves. & B. 503.

See CONTRACT.

Custodian of Inebriate.]-A. placed his son, who was much addicted to intemperance, under the care of B., a relation by marriage, and at his death left his son an annuity of £500. The son resided with B. for several years after his father's death and until a few months before his own death. B. always accompanied him when he went to receive his annuity from his father's executors, and he as soon as he received it handed it over to B. to keep for him; and B. from time to time gave him small sums and paid his bills :-Held, that B. was accountable in a court of equity for what he had received from the son. Terry v. Wacher, 15 Sim. 447. See Wilkinson v. Fowkes, 9 Hare, 592.

Dower, of.]-See HUSBAND AND WIFE. Executor.]-See EXECUTOR AND ADMINIS

TRATOR.

Lessees.]-Land was held under a lease by a person as trustee for a number of partners, who were not incorporated, but constituted an association for mining purposes :-Held, that the Court of Chancery had jurisdiction to decree an account against the association as equitable lessees of the land. Wright v. Pitt, 40 L. J., Ch. 558; L. R. 12 Eq. 408; 25 L. T. 13; 20 W. R. 27.

Liquidator.]-See COMPANY (WINDING-UP). Mines-Working by Tenants of ManorLaches of Lord.]-Where the lord of a manor, who claims against the tenants the right of property in the mines within the manor, has stood by for a long period, and allowed the tenants, without objection, to work the mines, and to expend large sums of money upon their mining operations, the court will not assist him by making a decree for an injunction or account against the tenants, but will leave him to his legal remedy. Parrot v. Palmer, 3 Myl. & K. 632.

Distinction between the cases in which the right to an account is incident to an injunction, and those in which it is independent of that relief. Ib.

Peculiarity of the case of mines in this respect. Ib

Coal Mine - Profits Possession.]Account of profits of coal mines not decreed without showing possession. Sayer v. Pierce, 1 Ves. 232.

And see post, col. 59.

Mortgagee.]-See MORTGAGE.

Partnership.]-See PARTNERSHIP.
Receiver.]-See RECEIVER.

Redemption.]-See MORTGAGE.

Rents and Profits.]-See post, col. 64. Tenant under 4 Anne, c. 16.]-A. and B. were, without the knowledge of C., tenants in common of land. C. had held land under A. In March, 1867, C. received from B. notice to quit at the end of six months. He did not quit, but afterwards made an agreement with A.'s agent for the renewal of the tenancy, continued the cultivation of the land, and paid the rent under the new lease. While C. was in possession, B. demised the premises to D.,

45

(A) ACCOUNTS.

In

as from March, 1868, for six months. June, 1868, D. entered on the land, cut the grass, put a lock on the gate, carried away the grass, and stacked it as hay :-Held, assuming C. and D. to be tenants in common, that these circumstances did not amount to an ouster so as to enable C. to maintain trespass against his co-tenant in common, D., nor to a destruction of the property so as to enable C. to maintain trover for the grass; but that his only remedy was under Anne, c. 16, s. 27, by a proceeding for an account. Jacobs v. Seward, 41 L. J., C. P. 221; L. R. 5 H. L. 464; 27 L. T. 185. Affirming, 18 W. R. 953-Ex. Ch.

See also ESTATE.

common

The court refused to allow an amendment of the declaration by converting the action into one for an account under that statute: -Held, that the refusal was right. Ib.

Trustee.]—The estate of a testator who died in 1832 was distributed in 1847, at the written request of the persons beneficially entitled. Another part of the estate, which fell in in 1852, was distributed also at the request, but not in writing, of the beneficiaries, and in 1871 the acting trustee died. No accounts or vouchers were forthcoming

from the trustees. A bill filed in 1872 by one of the beneficiaries and her husband against the surviving trustee, and the representative of the deceased trustee, for administration, was dismissed; but owing to the negligence of the trustees in not keeping accounts and vouchers, without costs. Payne v. Evens, L. R. 18 Eq. 356.

See also TRUST AND TRUSTEE.

Waste For.]-See WASTE.

In other Cases.]-See the respective Titles.

3. WHEN ORDERED.

a. Generally.

16 L. T. 176.

"Ordinary Account "-Wilful Default by Executor.]-A claim against an executor for an account on the footing of wilful default is within not a case of ordinary account the meaning of r. 8 of Ord. III., and consequently a summary order for such 1 of account cannot be made under r. Ord. XV. Bowen, In re, Bennett v. Bowen, 51 L. J., Ch. 825; 20 Ch. D. 538; 47 L. T. 114.

an

Special circumstances.]-It depends upon the circumstances of each case whether a matter is properly the subject of a suit for an Watford and Rickmansworth Ry. account. v. L. & N. W. Ry., 38 L. J., Ch. 449.

Discounts.] Accoutrement maker, who had been instructed to provide a cavalry outfit for plaintiff and son, and had obtained large tradesmen supplying the discounts from goods, disallowed the amount of such dis

counts. Turnbull v. Garden, 38 L. J., Ch. 331; 20 L. T. 218.

Rents and Profits.]-In an action for an account of rents and profits, the defendant delivered a defence and a counter-claim to set off money due to him from the plaintiff under an award. The plaintiff in his reply simply joined issue generally, and the defendant then, treating the counter-claim as admitted, moved under Ord. XXXIII. and Ord. XL. rr. 10 and 11, for an account of what was due to him under it, or in the alternative that the reply might be struck out or amended under Ord. XXVII. r. 1, as tending to embarrass, and as being a non-compliance with the Rules of Court within Ord. LIX. :-Held, that the case was not one for an account under Ord. XXXIII.; that no order could be made on the counter-claim before the principal claim of the plaintiff was dealt with;

and the alternative order was refused on the

ground that a defendant could not dictate to a plaintiff the nature of pleadings. Rolfe v. Maclaren, 3 Ch. D. 106; 24 W. R. 816. And see post, col. 64.

At what Stage.]-The court will not, after the delivery of the statement of defence, order a reference to arbitration under the Common Law Procedure Act, 1854, s. 11, but it has power at any stage to order an inquiry of fact to be made in chambers, pursuant to Ord. XXXIII. West London Dairy Society v. Abbott, 44 L. T. 376; 29 W. R. 584.

Staying Proceedings pending Appeal.]—In an action by a patentee to restrain alleged infringement of letters patent for the manufacture of pumps, a judgment was made granting a perpetual injunction against the defendants, who were pump manufacturers, and directing an account of the profits made by them by the sale of pumps made in