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If the defendant has not, by his answer, stated any settled account, still if the court, at the hearing of the cause, has reason to think that there was one, the decree should direct the accounts to be taken, not disturbing settled accounts, if any such should appear, but with liberty to the plaintiff to surcharge and falsify. Ib.

A direction not to disturb settled accounts was, after more than five years from the hearing of a cause, inserted in the decree, on a petition of rehearing obtained by a defendant, such rehearing being a matter of indulgence only, and not of right. Ib.

Settled accounts between parties will not be disturbed when accounts are taken in chambers. Newen v. Wellen, 31 L. J., Ch. 792; 10 W. R. 775.

(c) Re-opening, Surcharging and Falsifying.

Co-defendants.]-The usual direction not to disturb settled or stated accounts is applicable only to an alleged settlement of accounts between plaintiff and defendant, and not to one between co-defendants. Carmichael v. Carmichael, 2 Ph. 101; 10 Jur. 908.

Applies to Mutual Accounts.]-The direction to the Master not to disturb settled accounts applies only to mutual accounts between the parties, by which they would be bound, and is a special direction; but the direction to report special circumstances is one of course, and very often introduced without any object. Milford v. Milford, M'Clel. & Y. 151.

No Provision in Order setting up Settled Account.]-Under an order directing an account, and not referring to settled accounts, the accounting party may set up settled accounts, though the order does not direct that settled accounts shall not be disturbed, and the opposite party may impeach them, though the order does not expressly give him liberty to do so. Holgate v. Shutt, 54 L. J., Ch. 436; 28 Ch. D. 111; 51 L. T. 673; 49 J. P. 228

C. A.

School Bill-Overcharges.]-In an action on a schoolmistress's bill, with a set-off, it was opened on the part of the defendant, that a friend of his (since dead) had paid former school accounts due from the defendant to the plaintiff, and in settling those accounts had paid overcharges of which the defendant now meant to avail himself under his plea :-Held, that in the absence of fraud, the settled accounts could not be opened. Eastmore, 8 Car. & P. 205. v. Waller, 3 M. & W. 312.

Lewis v. See Andrews

Profit in Breach of Trust.]-Receiver of a public trust, having a salary, making interest of balances in his hands, is accountable to the trustees for interest made ultra, notwithstanding prior accounts settled without demanding it. Lonsdale (Earl) v. Church, 3 Bro. C. C. 4. See 7 Price, 45.

Usurious Items-Release.]-An account between A. and B. having been settled, A. executed a general release to B. :-Held, that the account could not be opened by A., on the ground of usury, until the release had been set aside, and that the release could not be set aside on the mere ground of usurious items having entered into the account, of which both parties were cognizant. Fowler v. Wyatt, 24 Beav. 232.

Profits of Voyage.]-The master of a vessel in the South Sea whale fishery agrees on behalf of the owners that each of the crew shall have a specified share of the profits of the voyage. Before the return of the vessel, the owners sell a quarter of the cargo. The custom of the trade is for the cooper to estimate the quantity of oil; this was done, and the plaintiff settled accordingly :-Held, that the owners had no right to sell part of the cargo; but the plaintiff having settled, could not then come for relief to equity. Cockle v. Whiting, 1 Taml. 55.

Note given on Balance-Subsequent Accounts.]-Where a balance of accounts is taken, and a note given as a balance, that must be paid; although there are subsequent accounts upon which the payee may be actually found in arrears. Preston Strutton, 1 Anstr. 50.

V.

Settled Account suggested but not Proved.]-A settled account, suggested by the answer, but not proved, is usually the subject of inquiry. Connop v. Hayward, 1 Y. & C. C. C. 33.

Solicitor Advancing to Infant.]-Solicitor who has advanced money to infant for subsistence of him and his family, and acted as confidential adviser, is in the nature of a guardian to him, and an account settled between them within a month after infant became of age, and without latter having any assistance was opened notwithstanding vouchers had been delivered up. Revett v. Harvey, 1 Sim. & S. 502; 2 L. J. (o.s.) Ch. 39.

Fraud.]-Where fraud appeared in a stated account the whole decreed to be opened, though it was a stated account of twentythree years' standing. Vernon v. Vawdry,

2 Atk. 119.

charged with mistakes can only be surcharged Where both parties are living an account and falsified. Where fraud imputed it will be set aside. Anon., 2 Eq. Abr. 12.

On the ground of fraud, general account was decreed, and the securities to stand only destroyed by general consent. for the balance, though the vouchers had been Wharton v. May, 5 Ves. 27.

Upon a bill by the vendor, seeking to rescind the sale, on the ground of fraud and oppression in the transaction, and error in the accounts, although the prayer to rescind the sale was refused, the account was opened after a considerable lapse of time. M'Neill v. Cahill, 2 Bligh, 229. See Drew v. Power, ante, col. 76.

Allegations-Particulars.]-The plaintiffs employed the defendants to purchase

(A) ACCOUNTS. 4. Settled Account. goods, as their agents, at the lowest possible prices. The plaintiffs sued for an account, and in their statement of claim alleged that the defendants had purchased goods at prices higher than the current prices, and had secretly received from the vendors allowances or commissions. The charges against the defendants were stated in general terms, no particulars being mentioned. The defendants denied the charges, and pleaded a settled account-Held, by Cotton, L.J., affirming the decision of Bacon, V.-C. (diss. Fry, L.J.), on an application for production of documents, that the plaintiffs were entitled thereto without giving particulars of fraud. Whyte v. Ahrens, 54 L. J., Ch. 145; 26 Ch. D. 723; 50 L. T. 344; 32 W. R. 649 -C. A.

Held, by Fry, L.J., that the allegations of fraud in the pleadings, not being sufficient to enable the plaintiffs to open a settled account, discovery ought to be refused until the allegations had been made sufficient. Ib.

General Allegation.] A general allegation of fraud, however strong the words used, where there is no statement of the circumstances relied on as constituting the alleged fraud, is insufficient even to amount to an averment of fraud of which the court ought to take notice. Therefore an account directed to be taken in this case where such an allegation had been made was directed to be taken without regard to this insufficient allegation of fraud. The judgment and execution were ordered to stand as security. Wallingford v. Mutual Society, 50 L. J., Q. B. 49; 5 App. Cas. 685. 43 L. T. 258; 29 W. R. 81-H. L. (E.).

Release held no bar to Account.]-The bill stated that an account had been made out, showing that a certain sum was due to the plaintiff, and it alleged that the defendants set up that account and the payment of the balance, as a final settlement. The bill charged the contrary, and that much more was due to the plaintiff, as would appear if certain accounts were rendered. A deed of release had, in fact, been executed by the plaintiff, at the time of the payment of the balance in question; but the bill made no mention of it. As this deed of release acknowledged the receipt of certain sums it could not be wholly set aside; but the court was of opinion, under the circumstances of the case, that it did not deprive the plaintiff of his right to the accounts which he sought. Semble, that the proper form of the decree in such a case is to declare that the plaintiff is entitled to the accounts, notwithstanding the provisions of the deed of release; but a decree which directed the accounts without noticing the deed of release was not considered to require alteration. Wedderburn v. Wedderburn, 4 Myl. & C. 41.

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(c) Re-opening, Surcharging and Falsifying.

the earlier accounts, another suit was instituted, and after proceedings had been taken a compromise was made, under which a sum of £220,000 was paid by the plaintiffs. On motion for an injunction to restrain proceedings in Scotland, a question was made, whether the order for compromise precluded the taking of accounts prior to 1825, or whether that order included all the accounts between the parties. Romilly, M.R., decided that the earlier accounts must be taken, and for that purpose he set aside the compromise. On appeal :-Held, that the compromise was binding from 1825, and the defendants electing to so consider it, the court varied the order of Romilly, M.R., by directing the accounts prior to 1825 only to be taken. Stainton v. Carron Co., 29 L. J., Ch. 587; 30 L. J., Ch. 713; 6 Jur. (N.S.) 360; 7 Jur. (N.s.) 645; 4 L. T., 659.

Leave to Surcharge and Falsify - See R. S. C., 1883, Ord. XXXIII. r. 5.]—When accounts are impeached and it is shewn that they contain errors of considerable extent both in number and amount, whether caused by mistake or fraud, the court will order such accounts, though extending over a long period of years, to be opened, and will not merely give liberty to surcharge and falsify; and supposing a fiduciary relation to exist between the parties, the court will make a similar order if such accounts are shewn to contain a less number of errors, or if they contain any fraudulent entries. Williamson v. Barbour, 50 L. J., Ch. 147; 9 Ch. D. 529; 37 L. T. 698.

Semble, in an action between principals and agents impeaching the agents' accounts, actual knowledge of antecedent fraud in the agents by one who subsequently became a member of the firm of the principals would not, if proved, be any bar to their claim. Ib.

When an account is impeached, if a single important error is established, the court will not, except in the case of fraud, order the whole account to be opened, but will make a decree that the plaintiff may be at liberty to surcharge and falsify. Gething v. Keighley, 48 L. J., Ch. 45; 9 Ch. D. 547; 27 W. R. 283. S. P., Begbie v. Fenwick, 18 W. R. 58; Vernon v. Vawdry, 2 Atk. 119.

The defendant was agent of the plaintiff's firm from 1848 to 1874, and resisted a claim for an account, setting up accounts delivered by him monthly during his agency as being now settled; on this issue the defendant succeeded at the trial; but the plaintiffs were allowed on terms to amend their claim, and they stated, and on adjourned hearing proved, five items of error (the earliest in 1871) in pleadings nowhere set up any right in the order to surcharge and falsify. The amended defendant to surcharge and falsify; but such right was claimed at the bar-Held, first, that the plaintiffs were entitled to surcharge and falsify all the monthly settled accounts. Mozley v. Cowie, 47 L. J., Ch. 271; 38 L. T. 908; 26 W. R. 854.

Held, secondly, that the evidence did not prove any items due to the defendant; but in any event he could not have any right to surcharge and falsify. Ib.

(A) ACCOUNTS. 4. Settled Account.

Discretion of Court.]-According to circumstances, the court will carry the relief beyond liberty to surcharge and falsify accounts settled; but even then it does not follow that it will go the length of setting accounts settled totaliv aside, unless the whole transaction of the settlement is a fraud, as distinguished from error, even so gross as to be what this court denominates fraud, in Hickson V. particular items. Aylward, 3 Moll. 14

Release Fraud or Surprise.] - Accounts having been settled, and a release executed, in order to avoid the latter, and obtain an account in this court, the plaintiff must establish either fraud or surprise. In order to induce the court to give a decree to surcharge and falsify, some one mistake must be shewn. If an error is detected, and settled before the institution of a suit, it is not a foundation for a decree to surcharge and falsify. Davies v. Spurling, 1 Taml. 199; 1 Russ. & M. 64; 32 R. R. 257.

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66

(c) Re-opening, Surcharging and Falsifying. In order to effect these purchases, loans of money were made by the agent to the customer, upon agreement that the stock and bonds should remain as a deposit in the hands of the agent, to secure the repayment of money advanced. The stock and bonds were afterwards sold at a loss under the advice of the agent. In 1819, an account of these transactions was rendered, and settled between the customer and the agent; and great loss having been incurred upon the transactions, a large balance was paid by the customer to the agent. Upon bill filed in 1824 all the transactions were set aside, and an account decreed against the agent. Rothschild v. Brookman, 5 Bligh (N.8.) 165; 2 Dow & Cl. 188; 30 R. R. 147. Affirming 3 Sim. 153; 7 L. J., Ch. 163.

Account not according to Articles.]-When three brothers entered into a partnership for seven years, or for such further time as the partners might agree upon," and at the end of the seven years a general account was taken, but nothing was mentioned about continuing the partnership, and the general account did not include the plaintiff's share of the good will-Held, that though he had signed the account he was not bound by it as it was not according to the terms of the articles, and no mention of the goodwill was made in the account. Barrow v. Barrow, 27 L. T. 431. Agent-Broker-Purchases and Sales of Foreign Stock.]-A broker or agent being employed by a customer to sell foreign stock, on a day specified by him in a letter of instructions, purchased the stock in the name of his partners, a firm in Paris. at the market price of the day. Being also employed to purchase foreign stock and bonds for his customer, according to his, the agent's, recommendation, he transmitted accounts of the transactions to his employer, with broker's notes, &c., as if he had purchased the stock of third persons. In fact, no stock or bonds were purchased; no transfers were made; no broker's notes passed; but the sales were nominal of stock and bonds remaining in the hands of the agent and his partners, and not set apart nor appropriated to the customer.

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Army Agent.]-Information, under 45 Geo. 3, c. 58, at the suit of the crown, against an army agent, for a discovery and production of documents with a view to an account. Plea 1. That the accounts had been settled and closed at the War-office, by the issuing of the clearing warrants, and setting out the warrants and referring to them; 2. That the moneys imprested in the agent's hands for the pay or arrears of pay of officers, were held by him as the banker or private agent of the officers by whom he was appointed, and that for such moneys he was not accountable to the crown. The plea ordered by the court below to stand for an answer, with liberty to Attorney-General to except :-Held, that both parts of the plea were bad; for that the clearing warrants did not purport on the face of them to be a final settlement of accounts, and that an army agent was a public officer, and was accountable to the crown for moneys received by him for the pay and arrears of pay of officers. Deare v. A.G., 2 Dow & Cl.

377.

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No regular Books kept.] - Account between principal and agent settled from loose papers, the agent having kept no regular books. After his death liberty was given to surcharge and falsify upon allegation of errors since discovered. Hardwicke V. Vernon, 4 Ves. 411; 4 R. R. 244.

Fraud by Agent-Laches of Principal.]-Account opened, and general account decreed against an agent who was also tenant to his principal, in respect of fraud; and laches in landlord, under the circumstances, not an objection. Beaumont v. Boultbee, 7 Ves. 599; 5 Ves. 485.

Re-opening Accounts for twenty-five years past.] The accounts and dealings between a principal and an agent, extending from 1825 down to the death of the agent in 1851, were directed to be opened, it appearing that there was no failure of evidence, either from lapse of time or the death of the agent,

(A) ACCOUNTS. 4. Settled Account. although no claim was made, or proceedings for an account instituted, in the lifetime of the agent. Stainton v. Carron Co., 24 Beav. 346; 27 L. J., Ch. 89; 3 Jur. (N.S.) 1235.

Collector of Rates.]-Overseers of a parish appointed the defendant collector of the rates. The defendant entered into a bond with the overseers by name, the condition being, that he should duly account to the then overseers and their successors in office. The defendant, having accounted to the overseers who appointed him, retired from office. The plaintiffs came into office as overseers after the defendant's retirement. They filed a bill for an account, and for delivery up of the parish rate-books. The defendant refused to account to them, on the ground that he was not their agent, or liable to account to them, and also on the ground that he had already accounted to the persons who employed him. A decree was made for an account and delivery up of the books, but no accounts settled between the defendant and the late overseers to be opened. Sellar v. Griffin, 33 L. J., Ch. 6; 9 Jur. (N.s.) 612.

Action for Salary-Cross-action-Bill for Account.]-A servant and agent had been in the habit of rendering accounts from time to time of his receipts and expenses, which were duly entered in the books of his principals. Having left their service he brought an action against them for salary. They thereupon filed a bill for an account, claiming also damages and denying that the salary was due :-Held, that the accounts could not be opened, that the question of damages and salary was a legal question, and that the bill could not be maintained. Hunter v. Belcher, 10 Jur. (N.s.) 663; 12 W. R. 782.

Servant swearing he has Paid to Master.]-A man swears he received money as a menial servant, and paid it over to his master. He shall not account for it again. Anon., 1 Vern. 136. S. P. Potts v. Potts, id. 207. But see id. 95.

Steward-Receipt in Full-Suspicious Circumstances.] — On suspicious circumstances in the answer, a general account was decreed against a steward, notwithstanding a receipt in full, which was allowed only as proof of the particular payment, not of a general release or discharge upon an account stated; though under circumstances it might have that effect, as upon proof that the principal never would give any vouchers, and an account kept by the steward. Middleditch V. Sharland, 5 Ves. 87.

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(c) Re-opening, Surcharging and Falsifying.
the bills are not accepted by the contrivance
of A. B. shall not be concluded by that
account, but be paid. Warr v. Praed, Colles,
P. C. 57.

Traveller.] The plaintiffs, in 1865, engaged the defendant as their traveller, to obtain orders and collect moneys, at a salary, the plaintiffs paying all travelling expenses. After each journey the defendant rendered an account, and paid over the balance appearing to be due from him. The travelling expenses were charged in the accounts as so many days' travelling expenses, without giving any particulars. No objection was made to the account, and they were entered in the plaintiffs' books. This went on till April, 1861, when the defendant gave the plaintiffs six months' notice of his intention to leave their service. The plaintiffs, in July, 1861, gave him notice to keep a detailed account of his travelling expenses, but, notwithstanding this, his subsequent accounts were prepared on the same footing as the former ones, and were dealt with in the same way down to October, 1861, when he left the plaintiffs' service. The defendant having sent in a claim for salary, the plaintiffs served him with a counterclaim which, however, did not raise any questions as to his accounts :-Held, that a bill by the plaintiffs against the defendant for an account could not be maintained. Hunter v. Belcher, 2 De G. J. & S. 194.

Composition deed-Fraudulent agent.] -A debtor executed a composition deed under the Bankruptcy Act, 1861, whereby he covenanted to pay his creditors a composition of 8s. in the pound. This deed was duly registered, and assented to by the required majority of creditors. Subsequently a person who had acted as the debtor's agent in certain business transactions claimed to be his creditor for £300, the amount of the account as settled between the debtor and his agent, and his name was entered as a creditor for that amount in the schedule to the deed, and he received the composition on it. The debtor, having afterwards discovered several fraudulent overcharges in his agent's account, filed a bill for an account :-Held, that he was entitled to a decree for an account, notwithstanding the composition deed. Pike V. Dickinson, 41 L. J., Ch. 171; L. R. 7 Ch. 61; 25 L. T. 579; 20 W. R. 81.

and

Benefit Building Society-Order for Account not referring to Settled Account.]— By the rules of a benefit society it was provided that the accounts should be audited, and that after they had been audited and signed by the auditors, the secretary treasurer should not be answerable for any mistakes, omissions, or errors that might afterwards be proved in them. An action for an account was commenced by two shareholders, on behalf of themselves and all other the shareholders, against the secretary. No pleadings were delivered, and on a motion for a receiver being made the defendant submitted to an order for an account of all moneys and property of the society come to his hands, without any direction as to settled

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(A) ACCOUNTS. 4. Settled Account. accounts. The defendant carried in a complete account, and the plaintiffs carried in a surcharge. The defendant then set up certain accounts which had been audited under the rules, as vouching his account for the period over which they extended. The point was brought before the judge, who was stated to have expressed his opinion that the audited accounts must be treated as conclusive. The plaintiffs then applied for a direction that in taking the accounts the audited accounts might be disregarded, on the ground that as the order did not save the settled accounts, they could not be attended to. The application was refused, and the plaintiffs appealed : -Held, that the audited accounts ought not to be disregarded, and that the appeal must be dismissed; but the dismissal was prefaced by a statement of the opinion of the court, that the plaintiffs, in taking the accounts under the order, were at liberty to impeach the audited accounts for fraud. Holgate v. Shutt, 53 L. J., Ch. 774; 27 Ch. D. 111; 51 L. T. 433; 32 W. R. 773.-C. A.

Committee for Finance.]-The plaintiff filed a bill, on behalf of himself and the other shareholders in a company, against the persons forming the financial committee, praying that

an

account might be taken of all moneys received by the defendants in respect of deposits upon shares, and an account of the cost and expenses incurred by them, and that the amount due to the plaintiff and the other shareholders, after giving credit for the moneys paid by them, might be distributed rateably among the shareholders :-Held, upon demurrer to the bill, that the fact of the defendants having already rendered an account did not preclude the plaintiff from having an account taken under the authority of the court, and that the remedy provided by the winding-up acts did not take away the plaintiff's right to file a bill for a similar purpose. Clements V. Bowes, 21 L. J., Ch. 306; 16 Jur. 96.

Agreed

- If the

Executor and Administrator Account binds Representatives.] immediate parties to a dealing account together, the representatives of either may not object to it. Gee v. Lewis, Colles, 416.

Executor-De son tort accounting to rightful Executor.]-A party, sued as executor de son tort jointly with the rightful executor, stated by his answer that he had, before the bill was filed, accounted for his receipts and payments to his co-defendant, and paid over to him the balance :-Held, that such settlement would not be binding on the plaintiff, who was beneficially interested in the estate, and therefore the court refused to insert in the decree the usual direction as to not disturbing settled or stated accounts. Such a direction is applicable only to an alleged settlement of accounts between plaintiff and defendant, and not to one between co-defendants. Carmichael V. Carmichael, 2 Ph. 101; 10 Jur. 908.

Account after Nine Years.]-An account was decreed against an executor after nine years, notwithstanding an account totted

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Overpayment by Servant discovered.] -Defendant's testator stated an account with plaintiff, which was signed by the parties; plaintiff afterwards finding his servant had paid £200 for which he had no credit, prayed a new account against the executor, who pleaded the former account stated, and that he was but an executor. Plea over-ruled; but plaintiff to proceed no further without leave of the court. Wright v. Coxon, 1 Ch. Ca. 262. S. P. Chandler v. Dorsett, Rep. t. Finch, 431.

the Solicitor Administrator.] — In year 1820 W. H. died possessed of considerable property, both real and personal. In 1830, after much litigation between his sons, A. and B. (of whom B. was the personal representative of W. H.), an account was stated and settled between A. and B. in respect of the assets of W. H. This account consisted of three papers, and was signed by each of the brothers, and witnessed. In 1841, and after the death of A., the plaintiff, who was his personal representative, filed the present bill against B., for an account of the assets of W. H., charging generally that the accounts were erroneous, but not assigning any specific errors. The defendant, who had been a solicitor, and acted as such in the administration of the assets, by his answer relied upon the settled account. At the hearing an error having been shown to exist upon the face of the account :-Held, that, notwithstanding the general rule in such cases, requiring specific errors to be alleged and proved, the plaintiff was entitled to relief so far as this particular mistake was concerned, as well in consequence of the character which the defendant filled, both of administrator and solicitor to the estate, and therefore bound to account accurately, as also from the circumstance that the mistake appeared upon the face of the account, and required no extrinsic evidence to explain it. Holland v. Holland, Dr. 391; 6 Ir. Eq. R. 407.

Administrator in loco parentis.]—A person died intestate. His brother took out administration, and placed himself in loco parentis to the intestate's children. One of them attained twenty-one in September, 1823, and in May, 1825, came to a settlement of account with the administrator which he signed and confirmed, and in January, 1828, he received his share of the estate. In September, 1843, he filed the bill to open the account. Many errors were shown to exist in the account, some of the items of which appeared to be fictitious; and although forty years had elapsed since the death of the intestate, twenty years since the plaintiff attained twenty-one, seventeen years since the settlement of the account, and more than two since the discovery of the errors, yet the court, having regard to the nature and extent of the errors, the relation between the parties, and the influence of the administrator over the plaintiff, refused to limit the relief to a right

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