For a Form of Claim for Money received for the Use of the Plaintiff, given in App. C., Sect. IV., No. 2, see "Money Received, post, p. 296.

For a Form of Claim by Payee against Maker of a Promissory Note, given in App. C., Sect. IV., No. 3, see "Bills of Exchange," post, p. 155.

For a Form of Claim by Indorsee against Acceptor of a Bill of Exchange, given in App. C., Sect. IV., No. 4, see "Bills of Exchange," post, p. 135.

For a Form of Claim by Indorsee against Acceptor and Drawer severally, given in App. C., Sect. IV., No. 5, see "Bills of Exchange," post, p. 138.

For a Form of Claim by Payee against Drawer excusing Notice of Dishonour, given in App. C., Sect. IV., No. 6, see "Bills of Exchange," post, p. 141.

For a Form of Claim for a Debt due under a Covenant in a Deed, given in App. C., Sect. IV., No. 8, see "Agreements," post, p. 98.

For a Form of Claim against a Shareholder in a Company for Money due to the Company on Allotment and for Calls, given in App. C., Sect. IV., No. 9, see "Company," post, p. 183.

For Forms of Claims on a Guarantee, given in App. C., Sect. IV., see "Guarantees," post, pp. 214, 215.

For a Form of Claim on a Guarantee against a Surety, and also against the Principal Debtor, given in App. C., Sect. IV., see "Guarantees," post, p. 215.

For a Form of Claim on a Money Bond, given in App. C., Sect. IV., No. 7, see "Bonds," post, p. 163.

For a Form of Claim by Landlord against his Tenant for Recovery of Land and for Mesne Profits, given in App. C., Sect. VII., No. 1, see "Landlord and Tenant," post, p. 273.

For Forms of Claims for Principal and Interest, given in App. C., Sect. IV., Nos. 3, 4, 5, 7, 8, see "Bills of Exchange," post, pp. 155, 135, 138; "Bonds," post, p. 163; "Agreements," post, p. 98.

CHAPTER V.

STATEMENTS OF CLAIM IN ACTIONS ON CONTRACTS.

ACCOUNT (a).

(a) The old action of account lay at common law against a bailiff or receiver, or against a merchant at the suit of a merchant, for not rendering a reasonable account of profits. (Bacon's Abr. Account; Co. Litt. 172 a; Fitz. Nat. Brev. Q. 117, 7th ed., p. 266.) This action did not lie by the common law against a joint-tenant or tenant in common of realty at the suit of his co-tenant, unless he had been expressly appointed bailiff of the latter's share (Ib.; Wheeler v. Horne, Willes, 208), but by 4 & 5 Anne, c. 3 (c. 16, Ruff.), s. 27, an action of account may be brought by one joint-tenant or tenant in common against the other, as bailiff, "for receiving more than comes to his just share or proportion" (see Henderson v. Eason, 17 Q. B. 701; Jacobs v. Seward, L. R. 5 H. L. 464, 475; 41 L. J. C. P. 221). That statute applies both to land and to goods. (Ib.)

As to the jurisdiction of the former Court of Chancery with respect to accounts between joint-tenants or tenants in common, see Daniell's Ch. Pract., 6th ed., p. 505.

By s. 34 of the Judicature Act, 1873, actions for "the taking of partnership or other accounts are assigned to the Chancery Division of the High Court of Justice. Therefore, where the taking of an account, especially if it be of a complicated character, is a principal part of the relief sought, the action should usually be brought in that Division; and if an action for such account is brought in the Queen's Bench Division, it may be transferred to the Chancery Division, under O. XLIX. (Leslie v. Clifford, 50 L. T. 591.) The Queen's Bench Division has power, however, to order an account to be taken (ss. 16, 24, 36, O. XV. r. 1; Charles v. Shepherd, (1892) 2 Q. B. 622), and may properly exercise this power where the account is one of a simple character (York v. Stowers, W. N. (1883) p. 174), particularly where it is merely part of the relief claimed in an action which is otherwise rightly brought in the Queen's Bench Division.

As to indorsing the writ with a claim for an account, see O. III. r. 8; and as to applications for an order for the taking of an account, see 0. XV., O. XXXIII. rr. 2-9.

For a form of statement of claim in an action against an agent for an account, see R. S. C. 1883, App. C. Sect. II. No. 4; Charles v. Shepherd,

supra.

See a form of statement of claim against an agent for not accounting, Agent." post, p. 90.

A's to claims for an account in actions for infringement of patents, or of trade marks, see Patents," post, p. 490; "Trade Marks," post, p. 519.

ACCOUNTS STATED (a).

Statement of Claim on Accounts Stated (b).

The plaintiff's claim is for money payable by the defendant to the plaintiff, for money found to be due from the defendant to the plaintiff on accounts stated between them.

Particulars:

[1890, May. Amount [or, Balance] due to plain

tiff verbally admitted on this date by defendant
[or, admitted by letters of the defendant dated,
&c., or as the case may be.]

(a) If the claim is upon accounts stated, or upon accounts stated together with other liquidated claims within O. ÎII. r. 6, the statement of claim may be indorsed on the writ. (See "Special Indorsements,” ante, p. 77.)

(b) An account stated is an admission of a sum of money being due from the defendant to the plaintiff. It affords a distinct cause of action, and may be so stated in the statement of claim. (Irving v. Veitch, 3 M. & W. 90, 106; Grundy v. Townsend, 36 W. R. 531.)

By O. XX. r. 8, "In every case in which the cause of action is a stated or settled account, the same shall be alleged with particulars, but in every case in which a statement of account is relied on by way of evidence or admission of any other cause of action which is pleaded, the same shall not be alleged in the pleadings."

Where there has been no express agreement as to the amount due, but the statement of account relied on as the foundation for the claim is to be implied from letters, conversations, or circumstances, probably the correct mode of pleading is to allege the stating of the account as a fact, and to give particulars indicating how the implication arises, and to refer generally to such letters, conversations, or circumstances, so as to inform the opposite party of the precise case he has to meet. (See O. XIX. rr. 24 and 6; Bickers v. Speight, 22 Q. B. D. 7; 58 L. J. Q. B. 42.) When the account stated, or admission of liability has been reduced to writing, it is correct to state that fact, the drawing up or giving of the writing being, it is conceived, in general a material fact proper to be pleaded. (See "Pleading in General," ante, p. 8.) It sometimes happens that claims for money due upon accounts stated are joined with claims upon the original debt, or debts, in respect of which such accounts were stated. Where this is the case it is usual to insert the claims upon accounts stated after those upon the original debt or debts.

The claim upon an account stated lies where there is an absolute acknowledgment or admission made by the defendant to the plaintiff of a debt due from him to the plaintiff and payable at the time of action brought. (Wayman v. Hilliard, 7 Bing. 101; Knowles v. Michel, 13 East, 249; Highmore v. Primrose, 5 M. & S. 65; Porter v. Cooper, 1 C. M. & R. 387; Wray v. Milestone, 5 M. & W. 21, 24; Buck v. Hurst, L. R. 1 C. P. 297.)

Where the acknowledgment or admission applies only to part of a larger debt claimed, it may be a good statement of account as to such part. (Chisman v. Count, 2 M. & G. 307; Grundy v. Townsend, 36 W. R. 531.)

An account stated alone does not extinguish or supersede or alter the previous debts respecting which it was stated (Fidgett v. Penny, 1 C. M. & R. 108; Smith v. Page, 15 M. & W. 683; Perry v. Attwood, 6 E. & B. 691; 25 L. J. Q. B. 408), but an account stated respecting debts on both sides may by agreement between the parties effect an extinction of the cross demands, and so operate as payment pro tanto (Ashby v. James, 11 M. & W. 542; Callander v. Howard, 10 C. B. 290). And where upon an account containing cross demands a balance is struck and agreed upon, the discharge of the other items is a sufficient consideration to support the debt for the balance, though the account might have contained claims for which an action would not lie. (Laycock v. Pickles, 4 B. & S. 497; 33 L. J. Q. B. 43.)

An account stated alone is not conclusive between the parties, but the debts respecting which it was stated may be examined. Thus, the defendant may show that the account was stated by mistake (see Trueman v. Hurst, 1 T. R. 40, 42; Thomas v. Hawkes, 8 M. & W. 140; Perry v. Attwood, supra); that the account was stated respecting a debt not then due. as an IO U given as security for a prospective debt (Lemere v. Elliott, 6 H. & N. 656; 30 L. J. Ex. 350); that the account was stated respecting debts void for want of consideration, or upon a consideration which has failed (Jacobs v. Fisher, 1 C. B. 178; Gough v. Findon, 7 Ex. 48; Wilson v. Wilson, 14 C. B. 616); that the debts were upon an illegal consideration or for an illegal purpose (Rose v. Savory, 2 Bing. N. C. 145); that the debt was for an attorney's costs, which could not be recovered for want of a bill delivered (Scadding v. Eyles, 9 Q. B. 858); that the debt was for the advocacy of a barrister (Kennedy v. Broun, 13 C. B. N. S. 677; 32 L. J. C. P. 137). But it is no defence that the account was stated respecting a debt due for an executed consideration under a contract within the Statute of Frauds, of which there was no memorandum in writing (Seago v. Deane, 4 Bing. 459; Knowles v. Michel, 13 East, 249; Cocking v. Ward, 1 C. B. 858); aliter, if the consideration was within the statute, and still executory (Lord Falmouth v. Thomas, 1 C. & M. 89).

The acknowledgment may be proved by writing, as by a bill of exchange or promissory note (Wheatley v. Williams, 1 M. & W. 533), if properly stamped (Green v. Davies, 4 B. & C. 235; Jones v. Ryder, 4 M. & W. 32; Ashling v. Boon, (1891) 1 Ch. 568; 60 L. J. Ch. 306), which is evidence of an account stated between immediate parties to the instrument, but not between remote parties (Burmester v. Hogarth, 11 M. & W. 97); or by an I O U, which is evidence of an account stated with the person to whom it is addressed (Jacobs v. Fisher, 1 C. B. 178; Wilson v. Wilson, 14 C. B. 616; Buck v. Hurst, L. R. 1 C. P. 297); and if it bears no address, then with the holder, in the absence of evidence to the contrary (Curtis v. Rickards, 1 M. & G. 46; Fesenmayer v. Adcock, 16 M. & W. 449); or the acknowledgment may be by oral statement (Newhall v. Holt, 6 M. & W. 662). An account stated respecting a debt which has not accrued within six years of action brought, must be in writing, by reason of the 9 Geo. IV. c. 14, s. 1, requiring a written acknowledgment (Jones v. Ryder, 4 M. & W. 32; and see Hopkins v. Logan, 5 M. & W. 241, 248); but upon an account stated respecting items on both sides and admitting a balance, it is no objection to the recovery of the balance that some of the earlier items were barred by the Statute of Limitations (Ashby v. James, 11 M. & W. 542).

The acknowledgment must be made before action (Spencer v. Parry, 3 A. & E. 331, 332; Allen v. Cook, 2 Dowl. 546); and it must show either