1833. PHILIPS V. BELDEN. or falsification; and if he fails to prove it, the account must stand as correct. But, in & general accounting, the party producing the account must show the items to be correct. ✪. and P. were owners of a large landed estate divided into farms. Many years ago they appointed T. B. their general agent to manage the estate and its tenantry and to agree with purchasers and to receive all the money and revenue arising from it. This agency continued to 1791, when A. B. (nephew to T. B.) was appointed sub-agent. In 1806, T. B. died; and A. B. became the general agent. Soon afterwards O. died, but the whole estate descended to P. who continued A. B. as such agent down to 1826. The powers of A. B. as given to hiần by O. and P. were those of a general agent and steward. O. and P. were in every way competent to scrutinize the accounts of A. B., but still they were averse to the trouble of it and relied entirely upon his integrity and went into no minute examination of them. He received money and acted generally in the agency; and from time to time shewed accounts, books of entries, vouchers, and copies of receipts given by him and paid balances as stated to the parties and they gave him receipts and acknowledged the accounts to be settled. HELD that this was different from a case of confidential relationship; and, upon a bill filed by P. in 1829. against A. B. for a general accounting, DECREED the accounts rendered and signed to be stated and settled accounts. But inasmuch as some particular errors and omissions were expressly charged, the court allowed the parties to surcharge and falsify as to these, but no further. Feb. 23, 1833. Principal and Land Agent. Settled Accounts. The original bill in this cause was filed in the month of February, one thousand eight hundred and twenty-nine, by Captain Frederick Philips, in his individual capacity, and as administrator of his mother, Margaret Ogilvie, deceased, (and to whom he was sole heir and next of kin,) against Amos Belden, for an account of his agency of their estates. Attorney and The bill also sought to set aside a conveyance made by Client. Captain Frederick Philips, and Samuel Gouverneur and Surcharging Mary his wife to Amos Belden, of a farm on which he reand Falsify-sided; and the complainants claimed payment of large sums ing. of money growing out of his agencies, alleged to be due to the said Frederick Philips at the time the bill was filed, both in his own right and in his character of administrator of Mrs. Ogilvie. Soon after filing the bill the original complainant died intestate; and the suit was revived by and in the name of his grandson, Frederick Philips, as his administrator, and who had also become administrator de bonis non of Mrs. Ogilvie, as well as in the names of Samuel Gouverneur and Mary, his wife: Mrs. Gouverneur being the daughter, sole heiress and next of kin of Captain Philips. After the answer had been put in and proofs were closed, the defendant, Amos Belden, died; and the suit was then revived against the present defendants, who were the widow and children, executors and devisees of Amos Belden. The cause was now heard upon pleadings and proofs, which were of very great length. The following is a succinct history of the agency: Mrs. Ogilvie, and her son Captain Philips, were the owners of a very large landed estate, called Philip's Patent, comprising a large portion of what is now Putnam county. Thomas Belden, the uncle of Amos Belden, had the agency of these lands from a very early period. In the year one thousand seven hundred and ninety one, Mrs. Ogilvie and Captain Philips appointed Amos Belden the sub-agent or assistant to his uncle, who was continued in the agency, and whose powers did not entirely cease until near the period of his death, which took place in the year one thousand eight hundred and six. Amos Belden, at first, resided with his uncle, and acted, in some measure, under his direction; but, gradually, the whole of the duty devolved upon him. On the fourth day of February one thousand eight hundred and seven, Mrs. Ogilvie died, being then almost eighty years of age; and upon her demise, the whole estate descended to her son, Captain Philips, who, from this period, was the sole proprietor of the estates, and Amos Belden, his sole agent, down to about the close of the year one thousand eight hundred and twenty-six. The powers of the latter as receiver, both from Mrs. Ogilvie and Captain Philips, were those of a general agent and steward. The patent or manor was divided into farms; and many of them were occupied by tenants. Mr. Belden, as agent and steward, collected the rents, made contracts for leases, negociated sales of some of the lands to settlers, and prepared the leases and conveyances which the proprietors executed, and handed to him to be delivered-leaving it entirely to him to receive the consideration money, (where money was to be paid) or to take notes or bonds and mortgages for security, and to hold the same, and collect the principal and interest monies whenever due. And as he resided upon the patent, and the proprietors lived in New York, the general superintendence and management of the estate and its tenantry, and the agreeing with purchasers, and the receiving of money and the revenue, were confided to him. In this way large amounts of money came 1833. PHILIPS v. BELDEN. 1833. PHILIPS v. BELDEN. into his hands during the time of his agency; and, for these he was to account. The bill charged, in substance, as regarded Mrs. Ogilvie, that, by agreement, she was to allow him a commission of seven and a half per cent. on all monies he collected. That, from her great confidence in him, the bonds, rent-rolls, notes, &c. to a large amount, belonging to her, which had been in the hands of the uncle, Thomas Belden, her former agent, she permitted to pass into the possession of Amos Belden, without any inventory or statement being made of the same. Also, that no accounts of the estate, showing any disposi tion of the bonds and notes or of the lands sold or monies collected and disbursed, with vouchers, were ever furnished by him to Mrs. Ogilvie, nor did she ever call for such accounts; and she never examined even the imperfect statements which he did occasionally furnish—and, from ber age, habits of life, and inexperience in accounts, she was incapable of making a proper examination of the same, while her confidence in him was such, as never made her think it necessary. The bill also alleged that a large amount of notes, bonds and money, belonging to Mrs. Ogilvie remained in his hands at the time of her death, in the year one thousand eight hundred and seven; and no account thereof had since been rendered to Captain Philips, although the same was frequently requested. That Captain Philips was easy and thoughtless in business matters, and, on account of having perfect confidence in this agent, never insisted on a settlement of Mrs. Ogilvie's accounts, until a short time before the filing of the bill, when the agent refused to settle the same, alleging his having made a full settlement with Mrs. Ogilvie, shortly before her death. That the complainant had lately discovered the fact of Mrs. Ogilvie's having, at different times, signed receipts in full, and accounts current for the agent as presented by him, on the credit side of which accounts a gross sum merely was entered, whilst, on the debit side, the charges were in detail, and Mrs. Ogilvie signed the same from a blind confidence, without examining the accounts or books or exhibiting or examining of vouchers, and in ignorance of the effect of the papers so signed. That, in such accounts, there were various overcharges, and, amongst them, a demand of five per cent. commission on sales of land, in addition to a general compensation to the agent, which charge was unjust and unauthorized and unknown to Mrs. Ogilvie, and wholly unknown to the complainant until recently. The bill further stated, that the defendant, Amos Belden, never prepared, even upon his own books, any regular statement of the property of Mrs. Ogilvie remaining in his hands at her death, but continued to receive large sums of money from such property, and, in some cases, credited the same to the complainant, without making any distinction in his entries between such monies. and those received from the individual estate of the complainant; and had so blended the accounts, that no fair and just settlement of them could be effected, until a similar settlement of his accounts with the complainant individually was made, and, vice versa. The bill then set forth, that the agency of Mr. Belden for Captain Philips was of the same character as the one with Mrs. Ogilvie, and the compensation similar, until the year one thousand eight hundred and eleven, when the commission for his services was reduced to five per cent., in consideration of large sums, which he would thereafter have to receive from the sales of land-under an agreement for an appraisement of the farms to the tenants as purchasers. That a large amount of bonds, notes and other securities, with rent-rolls, deeds and maps, belonging to the complainant, came into his possession directly from Thomas Belden, the first agent, without passing through the hands of the complainant, and without any inventory or account having been furnished to him; and from the great confidence he had in both, the complainant permitted a transfer without requir ing the same. And in addition to these, and during the time he was such agent, large sums of money, and a great number of other bonds, notes and securities belonging to the complainant, came into his hands. That, from the general habits of life of Captain Philips, and his total inexperience in business, and in keeping accounts, his aversions to the same, and on account of his unbounded confidence in the agent, he never took any part in the management of the estate, except in the execution of deeds and papers, and in performing such 1883. PHILIPS บ. BELDEN. 1833. PHILIPS v. other occasional acts as the agent suggested; and in all which cases, the complainant acted without any examinaBELDEN. tion or knowledge of the subject, further than from information of the agent; and, in general, and throughout all the transactions, he reposed entirely upon the judgment of this agent. The bill then showed various transactions in relation to the estate, and of sales made to a large amount and monies received by the agent; charged the latter with acts of mismanagement and remissness of duty, whereby losses had been sustained; and impeached the fairness of his conduct and motives in becoming the purchaser and in procuring from the complainant, and Gouverneur and wife, a conveyance of the farm on which he resided as a tenant. That, at different times, the complainant had executed promissory notes to him for large amounts, at a time when he was entirely ignorant of the original consideration and merely upon the agent's representations, without any knowledge of the state of the accounts or any being furnished whereby he might have ascertained whether he was really indebted in the amount of such notes. That some of such notes were continued by renewals, with compound interest charged, and were finally taken up, by assigning various bonds and mortgages to the agent: all of which was done in ignorance of the true state of the accounts, and upon an entire trust of the good faith of the agent. The bill set forth several other transactions in relation to bonds and mortgages, in which the complainant alleged he had been overreached and defrauded. That in the year one thousand eight hundred and twenty-six, the agent obtained a note from him for two hundred and fifty one pounds six shillings and two pence, but did not furnish any statement of his general account, nor did the complainant examine any part of his accounts, but gave the note thoughtlessly, and relying entirely upon the representations of the agent, and believing all errors would be rectified on a general settlement. That, upon receiving monies at different times from the agent, this complainant had given receipts, which purported to be in full, and had also signed some of the accounts as correct; but, upon the signing of accounts and receipts in full, the complainant never examined the general account or |