1833. PHILIPS v. on him the duty of keeping accounts; and the circumstances which he disclosed by his answer were not sufficient to excuse him, as steward, for the monstrous negligence in keep- BELDEN. ing no account whatever. Therefore, for the sake of the precedent, he was bound to order an account of all the dealings and transactions; and decreed the receipt should not serve any further than as evidence of so much money paid. So, in Salkeld v. Vernon, 1. Eden, 65, a bill was filed by a residuary legatee against executors, for an account. A release was set up, but the Lord Keeper put it aside and decreed an account, mainly upon the ground that the release had been obtained without an account from the executors of the personal He deemed it a necessary ingredient to support such a release that an account should be rendered. On the other hand, Davies v. Spurling, 1. Tam. R. 199, & S. C. 1 Russ. & M. 64, is an authority to show, if an authority were necessary, that where accounts have been rendered by an Executor, Agent or Trustee, and, after being examined, the same are admitted to be correct and an acknowledgment to this effect is signed and the balance paid, such a settlement will not be disturbed, nor the accounts ordered to be retaken under the direction of the Court, unless for fraud or surprise in the settlement clearly proved or so far as errors in the accounts can be pointed out. There is a numerous class of cases in the books, where, it is true, the Court of Chancery has gone pretty far in opening accounts, upon the ground of settlements having been made during the existence of a confidential relationship. These are between Attorney and Client, or Solicitor and Client. Still, in all the cases of this description to which I have been referred, or which have fallen under my observation, in addition to professional confidence, as a ground for interference, there has existed special circumstances, showing fraud and imposition practised upon the client, or an undue use made of the power and influence which the relation of Attorney and Client has given the former over the latter, and of which he had taken an unconscientious advantage. The cases of Wharton v. May, 5. Ves. 27. and Vaughan v. Lloyd, before Lord Thurlow, there cited, Purcell v. Mc Namara, 14. Ves. 91., Lewis v. Morgan, 5. Price, 42. S. C. 4. 1833. PHILIPS v. BELDEN. Dow, 29. and 3, Young and Jervis 230, and Jenkins v. Gould, ut supra, are all instances of this sort. Even if the Court should be called upon, in a case between Solicitor and Client, to set aside a release and to open accounts, in the absence of any thing like fraud, I apprehend it would be for reasons of public policy and upon principles peculiar to such cases; and which do not apply as between principal and agent, manager and steward disconnected with professional calling or the character of a legal adviser: 5 Price 43 n. & 55. On this topic it is unnecessary to enlarge. I am convinced there is no good reason why accounts, which have been settled in a case of a stewardship or agency like the present, should be opened and the agent or his representatives be subjected to a new accounting under the direction of the Court, merely because, at the time of the settlements, the agent possessed the unbounded confidence of his principal. On this ground the Court cannot interfere. If the accounts are to be opened at all, it must be for other reasons and upon more substantial grounds. This brings me to the consideration of the alleged frauds, overcharges, mistakes and errors, and the effect which these, when ascertained, are to have upon the settlements. As respects fraud in the settlement of Mrs. Ogilvie's accounts, none, indeed, appears. An objection is taken to the manner of stating some of the accounts; because the credit side contains only a sum in gross, without a detail of items. It is also made a point that the Agent did not keep and furnish rent rolls and other proper statements of property and income; and has not been sufficiently distinct in his accounts as to what belonged to Mrs. Ogilvie and what to Captain Philips. All these matters, even as shown, are far from being evidence of fraud; nor does any loss or injury appear to have resulted to the principals, from such keeping and rendering of accounts. If they were not so full and explicit as to be satisfactory to Mrs. Ogilvie, she should have objected at the time. After what has taken place, these circumstances are not enough to warrant the opening of them. Then, as to what are alleged to be overcharges or errors, and which are pointed out as grounds for granting leave to the complainants to surcharge and falsify. These consist of two things, namely, charges of five per cent. Commissions on the sales of land for Mrs. Ogilvie, in addition to the stipulated commission of seven and a half per cent., and a charge of interest on three hundred pounds paid to Thomas Belden for a period of three years. The commissions objected to are found in two accounts, one settled in the year seventeen hundred and ninety-nine, and the other in eighteen hundred and one. They are charged on certain sums, as being the amount of sales of lands, and are entirely distinct from the other commission of seven and a half per cent. on the amount of collections of Rents and notes. They formed very conspicuous items in the accounts, so as to have been easily perceived even upon the slightest examination, and are, likewise, so plainly expressed as to be understood by the most ordinary capacity. Mrs. Ogilvie has signed these accounts as settled; and upon payment of the balances which were in her favour, she gave receipts in full. In addition to the evidence thus afforded of the correctness of the charges, the defendant is called upon, by the bill, to say, whether his accounts were not overcharged in this respect, and he denies they are, and avers that the five per cent. upon the sale of lands, in addition to the seven and a half for collecting of monies, was authorized and Mrs. Ogilvie knew of it, and he insists upon the same being just, and of its having been allowed by her knowingly. This is evidence of an agreement on her part to allow the five per cent. as well as the seven and a half per cent. commission. It stands uncontradicted; and I should not be justified, in the face of the agreement and of her actual allowance of both commissions distinctly presented in the accounts, in permitting the complainants now to falsify the charges. Then, as respects the interest money of twenty-one pounds a year paid on the debt due to Thomas Belden. This is charged as having been paid for three years in succession. There is no allegation in the bill, drawing in question the correctness of the accounts in this particular; and, of course, there is nothing in the answer relating particularly to the subject. On the hearing, it was, for the first time, suggested to be an error or a charge in the accounts which the defen 1833. PHILIPS D. BELDEN. 1833. PHILIPS v. BELDEN. dant ought not to have made, because, as the Counsel said, it appeared, from the accounts themselves, that the defendant had balances in his hands sufficient to have paid the debt and ought to have paid it, and stopped the interest; or, if he permitted the interest to accrue against Mrs. Ogilvie, he should have allowed her interest on the balances in his hands. I am not satisfied that, in point of fact, monies belonging to Mrs. Ogilvie remained in the defendant's hands any length of time. He was in the habit of paying her over sums from time to time as the money came in and whenever convenient opportunities offered to send it to her, obtaining her receipts for such payment on account, and then, at reasonable intervals, making the settlements before spoken of and paying her the balance, the accounts being made up of his collections at different periods on the one hand, and his disbursements and payments on the other. In running accounts of this sort, it may well be, and doubtless often was the case, that he had but small amounts remaining in his hands for any length of time. Hence, it may be unjust to charge him with interest or to impute negligence to him in not paying off the debt due to Thomas Belden. Besides, it is said, and I think truly, the defendant was not bound, without the express direction or authority of Mrs. Ogilvie, to apply the funds in his hands to the payment of her debts, and he is not to be charged with a breach of duty in this respect until the complainants shew she gave him such authority or direction. And as he paid the interest and charged the same in his accounts, and which she has allowed and settled as being correct, the presumption is that his authority extended no further and that it suited her convenience to let the principal remain a few years unpaid. For these reasons, I cannot but think this last ground, upon which it is urged that the complainants ought to be let in to surcharge and falsify, is likewise not sustained, Upon the whole, in regard to the accounts with Mrs. Ogilvie, even if the grounds assumed were such as could be deemed sufficient, under other circumstances, to let the complainants in to a partial scrutiny of the accounts or to require the defendant to submit to an entirely new accounting, as if no settlements had ever taken place, still, under present circumstances, the Court ought not and cannot with any degree of propriety interfere. It is a wise and salutary provision of the law, which permits time to draw a veil over the transactions of men; and equity, acting upon this benign principle, gives great effect to the lapse of time, and discourages claims not promptly made, especially where there has been no personal disability or other impediment in the way of asserting them. Here has been none; and yet, from the time of Mrs. Ogilvie's death (when all her rights devolved upon her son), a period of twenty years or thereabouts has been suffered to elapse, without objection to any part of the accounts and without the least intimation or assertion of claim arising upon them. If this long acquiescence is not an absolute bar, it is, at least, a circumstance to require at this day much clearer proof for opening and re-investigating the accounts than is at present furnished: Hampson on Trustees; 99.; Ellison v. Moffat, 1 John. Ch. Rep. 46.; Rayner v. Pearsall, 3. Ib. 578. My conclusion on this part of the case is that Mrs. Ogilvie's accounts must stand as settled accounts; and that the complainants have not shown enough to entitle them to surcharge and falsify, especially at this late day. I now proceed to the account with Captain Philips. For the reasons already given against opening the settlements made with Mrs. Ogilvie, on the ground of the confidential relationship and the slight examination of the accounts when presented, it is manifest the settlements with him, as acknowledged under his hand, should not be set aside. The same principles apply and the reasons are still stronger against him why the accounts should not be opened upon these grounds. Nor do I think there is any thing which can possibly be construed into fraud on the part of Mr. Belden, in the mode of keeping and rendering his accounts or in the manner of settling them with Captain Philips, so as to require the interference of the Court to the full extent of subjecting Mr. Belden or his representativesto an entirely new accounting. I shall, therefore, leave these accounts likewise to stand and to be treated as settled accounts between Captain Philips and Mr. Belden. But there are sufficient reasons why the complainants 1833. PHILIPS บ. BELDEN. |