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common law was summons, attachment, and distress infinite. The stat. of Marlbridge (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
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.
SOME REMARKS ON THE SUBJECT OF
Where there has been a stated account, the balance appearing due (if not barred) will, if acknowledged by the debtor, carry interest : (Barwell v. Parker, 2 Ves. 363.)
The rate allowed by the Court of Chancery, when not otherwise agreed on, is 4 per cent.: (Attorney-General v. Alford, 24 L. T. Rep. 266.)
By the stat. 1 & 2 Vict. c. 110, a judgment debt carries interest at 4 per cent. from the time of entering up the judgment.
On a bond no interest can be recovered beyond the amount of the penalty : (Sharp v. Earl of Scarborough, 3 Ves. 557.).
On a simple contract debt the 46th Chancery Order of August, 1841, gave interest at 4 per cent. from the date of the decree.
By the stat. 3 & 4 Will. 4, c. 42, s. 28, the jury, on the trial of any issue, may, if they think fit, allow interest to the creditor, at a rate not exceeding the current rate, from the time when demand of payment has been made in writing, and notice given that interest would be charged.
Payments on account are allowed to be taken first in discharge of interest due: (Bower v. Main, Cr. & Ph. 351; Booth v. Alington, 28 L. T. Rep. 211.),
As a general rule, interest is not allowed by law upon money lent, except upon securities, or where there is an express engagement to that effect, or a promise implied by usage, or where the jury shall allow it under 3 & 4 Will. 4,
When an improper indorsement is made on a writ, claiming interest where none is legally payable, the proceedings will be set aside, and the attorney be made to pay the costs : (Rodway v. Lucas, 24 L. T. Rep. 277.)
When an account in Chancery was made out with rests, it was allowed to charge compound interest; although there was, however, a difference of practice amongst the Masters