A FEW OBSERVATIONS ON ACCOUNTS.

An account must be in writing, showing a balance : (Busk v. Brown, 2 Atk. 399.)

It is not essential that an account should be signed by the parties; it will be sufficient if delivered and acquiesced in for a considerable time, without objection: (Willis v. Jernegan, 2 Atk. 252.) Nor will the circumstance of the account appearing to have been settled, errors excepted, be a sufficient ground to open a settled account, unless specific errors be pointed out: (Johnson v. Curtis, 3 Bro. C. C. 266.)

An open account exists where the balance is not struck, or where the account is not agreed to by both parties. A closed account is one which is settled.

A stated account is one that is accepted by both parties. This acceptance need not be expressed, but will be implied if no objection be made within a reasonable time. If there be any mistake or omission in a stated account, the Court of Chancery will interfere.

In the case of a running account, where there are various continuous items on both sides, there, if neither party make any special appropriation of payments or credits, they are to be appropriated to the discharge of the items antecedently due, in the order of time in which such items stand in the account: (Story, s. 459a.)

Trustees, executors and administrators, mortgagees in possession, solicitors entrusted with their clients' moneys, assignees, committees, receivers, bailiffs, agents, factors, stewards, and servants entrusted with moneys, are bound to account. The shape of these accounts should be in accordance with the business transacted.

The great tribunal which has the cognizance of accounts is the Court of Chancery.

The Court of Chancery may give special directions as to the mode of taking and vouching accounts, and may direct the original books containing the accounts to be taken as primâ facie evidence of the truth of the matters therein contained: (15 & 16 Vict. c. 86, s. 54.) When accounts are of

long standing, the accounting party has been allowed to be discharged upon oath: (Peyton v. Green, 1 Ch. Rep. 146.) A trustee is bound to give an account, if demanded, and should be always ready with his accounts. He is entitled to have his accounts examined, and to have a settlement of them made; but he cannot compel the cestui que trust to give a release under seal. The cestui que trust, however, if satisfied with the accounts, should agree to close them, and to give an acknowledgment: (2 Sp. 46, 47.) A release under seal is an answer to a suit for an account, unless circumstances amounting to fraud can be shown.

If an agent do not keep regular accounts and vouchers, he will not be allowed the compensation to which he would other. wise be entitled ; and if he mix his principal's money with his own, he is obliged to show what portion belongs to himself; and, so far as he is unable to do so, the property will be considered as belonging to the principal: (Story, s. 468; White v. Lady Lincoln, 8 Ves. 369.)

The Statute of Limitations, 21 James 1, c. 16, excepted from its operations "such accounts as concern the trade of merchandise between merchant and merchant, their factors and servants." It has been held, however, that this exception extended only to accounts current, and not to accounts stated (Cases in note 2 Saund. 127.)

By sect. 9 of the Mercantile Law Amendment Act, 1856, it is enacted that "all actions of account, or for not accounting, and suits for such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants, shall be commenced and sued within six years after the cause of such actions or suits; or, where such cause has already arisen, then within six years after the passing of this act, and no claim in respect of a matter which arose more than six years before the commencement of such action or suit, shall be enforceable by action or suit by reason only of some other matter of claim comprised in the same account having arisen within six years next before the commencement of such action or suit."

The difference between merchants' accounts and those of other parties has formerly been said to be, that, as regards the former, a continuation of accounts would afterwards prevent the statute running against the previous accounts, but, as to others, not being merchants' accounts, the statute would be a bar as to all items before six years: (Martin v. Heathcote, 2nd ed. 169, note; Madd. 138.)

In the writ of account (or accompt) the process by the

common law was summons, attachment, and distress infinite. The stat. of Marl bridge (52 Hen. 3, c. 23) gave attachment by the body, if the bailiff (or accounting party) had no lands by which he might be distrained. By stat. Westminster 2, (13 Ed. 1, c. 1) c. 11, if the accountant were found in arrearages, the auditors that were assigned to him had power to award him to prison. In the process of outlawry, &c. the stat. 13 Ed. 3, c. 23, gave an action of accompt to the executors of a merchant; the stat. 25 Ed. 3, c. 5, gave the like to executors of executors; the stat. of 31 Ed. 3, c. 11, to administrators; and by the stat. 3 & 4 Anne, c. 16, actions of account might be brought against the executors and administrators of every guardian, bailiff, and receiver, and by one joint-tenant, tenant in common, his executors and administrators, against the other or others, his or their executors or administrators.

The action of account at length became obsolete, and an action for money had and received was extensively used instead.

The Court of Chancery is now the tribunal to which the investigation of accounts is usually entrusted.

To induce the interference of the court, there must be either (1) mutual demands and complicated accounts; or (2) some fiduciary subject, where the position of the accounting party is such that any default in his accounts becomes a breach of trust. (3) The court will also direct an account, as a collateral incident, where its powers have been put in requisition for some other purpose, as where an injunction is granted to restrain the felling of timber, or the piracy of a copyright. (4) In some other cases also, which stand upon their own peculiar circumstances, the court will grant an account, as in matters of tithe and dower.

With respect to a stated account, if the claimant party can prove that any additional items ought to be introduced, or that any items in it are erroneous, liberty is given him to surcharge it, i. e. to introduce on the debit side any items which he can show the accounting party ought to be additionally charged with; and also to falsify it, i. e. to strike out from the credit side any items for which the defendant has improperly taken credit for: (Pitt v. Cholmondeley, 2 Ves. sen. 566.)

Accounts of personal estate and of rents and profits, as also receivers' accounts, carried into the Court of Chancery, are to be framed in accordance with the forms set forth in the schedule to the "Regulations" dated August 8th, 1857. In the ordinary case of mesne profits, where aid will

clearly be given at law, courts of equity will not interpose: (St. s. 511.)

Wherever relief is afforded in equity it will be found that there is some peculiar equitable ground for interference, such as fraud, accident, or mistake, the existence of a constructive trust, or the necessity of interposing to prevent multiplicity of suits: (St. ss. 509-514.)

It is generally a good bar to a suit for an account, that the parties have already stated the items and struck the balance; but if there be any mistake, omission, accident, or fraud, a court of equity will interfere.