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bill for the settlement of boundaries, when the rights of one of the parties may be established upon equitable grounds.

The history of this branch of equitable jurisdiction is not well known, and the power is rarely exercised, and only in cases where in addition to the fact of a controverted boundary some special equity is superinduced...

These grounds are various, the principal of which are the following:

When the confusion has arisen by the fraud of the defendant, that alone will constitute a sufficient ground for the interference of the court.123

When the defendant is obliged to preserve and protect the boundaries, and by his negligence or misconduct the confusion has arisen, and without assistance they cannot be found.129 This fact, together with a statement of the relation of the parties, must appear in the bill.

When, by exercising this jurisdiction in equity, a multiplicity of suits will be prevented.

3928. Sometimes there is another class of cases arising from confusion or entanglement of other rights, when courts of equity will afford a remedy, without which the mischief would otherwise be irremediable. For example, where rent is chargeable on lands, and the remedy by distress has, in consequence of the confusion of boundaries, become impracticable, a bill in equity for the ascertainment of the boundaries will be entertained. 131

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197 See Story, Eq. Jur. 82 610-619; 2 White & T. Lead. Eq. Cas. 318, and notes; Wake v. Conyers, 1 Ed. Ch. 334; Speer v. Crawter, 2 Mer. Ch. 410; Lethulier v. Castlemain, 1 Dick. Ch. 46; Waring v. Hotham, 1 Brown, Ch. 40; Haskell v. Allen, 23 Me. 448; Stewart v. Coulter, 4 Rand. Va. 74; Hale v. Darter, 5 Humphr. Tenn. 79; Topp v. Williams, 7 id. 569; Wolcott v. Robbins, 26 Conn. 236.

128 Rouse v. Barker, 3 Brown, Ch. 180; Speer v. Crawter, 2 Mer. Ch. 418; Grierson v. Eyre, 9 Ves. Ch. 345; Attorney General v. Fullerton, 2 Vés. & B. Ir. Ch. 263; Willis v. Parkinson, 2 Mer. Ch. 506.

129 Miller v. Warmington, 1 Jac. & W. Ch. 472; Attorney General v. Fullerton, 2 Ves. Ch. 263; Willis v. Parkinson, 2 Mer. Ch. 506; Duke of Leeds v. Strafford, 1 Ves. Ch. 186; Speer v. Crawter, 17 Ves. Ch. 216.

130 Wake v. Conyers, 1 Cox, Ch. 360; 1 Ed. Ch. 331 ; Bouverie v. Prentice, 1 Brown, Ch. 200; Marquis of Buté v. Glamorganshire Co., 1 Phill. Ch. 681; Bayley v. Edwards, 3 Swanst. Ch. 703; Tulloch v. Hartley, 1 Younge & C. Ch. 114.

131 Duke of Leeds v. New Radnor, 2 Brown, Ch. 338; 2 Brown, Ch. 200; Duke of Leeds v. Powell 1 Ves. Ch. 171: Attorney General v. Stephens, 35 Eng. L. & Eq. 390.

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CHAPTER VI.

REMEDIES IN PARTICULAR CASES.

3930-3942. Account.

3931. The jurisdiction in matters of account.
3938. Bills praying account against agents.
3939. Bills praying for contribution.
3941. Bills praying for ap tior
3942. Various cases.
3943. Dower.
3944. Partition.

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3929. The cases for equitable relief treated of in this chapter may be classed into those which relate to accounts, dower, partitions.

3930. This subject of accounts will be considered by taking a view, first, of the jurisdiction of courts of equity in matters of account; second, of bills against agents; third, of bills praying for contribution; fourth, of bills praying for an apportionment; fifth, of other cases of a miscellaneous nature.

3931. In treating of the different forms of actions, we considered pretty thoroughly the remedy afforded by an action of account at common law. The proceedings in such action are somewhat inconvenient and difficult, and the remedy in equity is more generally adopted.?

The assumption of jurisdiction by courts of equity in cases of accounts arose in consequence of the inadequacy of the remedy at law. Equity has means which are not possessed at law to compel the accountant to a discovery of books and papers on oath ;' and in order to effectuate justice the defendant may have a decree if the balance shall be in his favor, for in these cases both parties are actors when the cause is before the court upon the merits.

In addition to these considerations it will be remembered also that equity, through the intervention of a master, furnishes a more ready and satisfactory means of investigating accounts which in most cases are composed of a large number of particulars. This advantage, it is true, has in some jurisdictions been made available to law courts by reference, under statutory provisions, to auditors with powers similar to those of masters, yet in jurisdictions where full equity powers are possessed by the courts, this is an important consideration. The flexibility of the proceedings in equity and their adaptation to the conditions of the particular case, and the greater opportunity of joining as parties those

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* See before, 3405 to 3423.

Bacon, Abr. Accompt; 3 Sharswood, Blackst. Comm. 164.

Blackstone thinks that “for want of this discovery at law, courts of equity have acquired a concurrent jurisdiction with every other court in matters of account.”' 3 Comm. 437. It is a general rule that where a court of equity has jurisdiction for discovery, and the discovery is effectual, it may grant full relief; for when it has legitimately acquired jurisdiction over a cause, for the purpose of discovery, to prevent a multiplicity of suits it will also entertain a suit for relief. Armstrong v. Gilchrist, 2 Johns. Cas. N. Y. 424; Rathbone v. Warren, 10 Johns. N. Y. 587; Lynch v. Sumrall, 1 A. K. Marsh. Ky. 469; Handly v. Fitzhugh, 1 A. K. Marsh. Ky. 25; Cave v. Trabue, 2 Bibb, Ky. 445. * Done’s Case, 1 P. Will. Ch. 263; 1 Story, Eq. Jur. § 522.

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who are interested in the result has also tended to increase the efficiency of the equitable jurisdiction in these matters of mutual accounts.

It would seem to be necessary to give jurisdiction in equity that there should be a right to a discovery from the defendant and a prayer therefor in the bill, or else a complicated account or mutual accounts or the existence of a fiduciary relation between the parties.

The bill for an account must upon its face show a sufficient title or right in the plaintiff, and a liability in the defendant to have an account, and pray that the defendant may render an account.

3932. To this bill the defendant may set up a variety of defences; such as that he never was liable, that he has been released by the plaintiff

, that an account has been stated between the parties, that an account has been settled, and lapse of time.

3933. When the claimant founds his claim on a contract, the defendant may deny that such contract ever existed.

3934. A release, whether under seal or not, is conclusive against a bill for an account. But in order to have this conclusive effect, the release must have been given upon a sufficient consideration.?

3935. When an account has been stated in writing, in which the balance is set forth and acknowledged, it is in general a sufficient ground for refusing to compel a general account. In this case it is a rule that if the account has been delivered, and the party to whom it is delivered expressly accept the same, or keep it so long as to induce a belief that he has accepted it without making any objection to its accuracy, he ought to be bound by his conduct. An account has been considered as accepted in the instance of merchants at home when no objection has been made within two or three posts.10 Between merchants in different countries, when an account has been transferred from one to the other and no objection has been made, after several opportunities of writing have occurred, it is considered as an acquiescence in the correctness of the account transmitted, and it will be treated as a settled account."

3936. Prima facie a settled account will be binding upon the parties, and a court of equity will not allow it to be unravelled because the vouchers may have been delivered up and discharged. In such case, the utmost allowance

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6 Some of the advantages of the equitable procedure are attained in some jurisdictions by reference to an auditor under rule of court, who proceeds much in the same manner of a master in chancery to the examination of accounts, with power to summon witnesses and require the production of books and papers.

Darthey v. Clemens, 6 Beav. Rolls, 165; Mackenzie v. Johnston, 4 Madd. Ch. 374; Massey v. Banner, 4 Madd. Ch. 416; Pendleton v. Wambersie, 4 Cranch, 73; see Story, Eq. Jur. Redfield's ed. & 454, et seq. and notes.

? Roche v. Morgell, 2 Schoales & L. Ch. Ir. 726; Middleditch v. Sharland, 5 Ves. Ch. 87.

8 Taylor v. Haylin, 2 Brown, Ch. 310. The rule is laid down by Judge Story that where there has been an account stated, that may be set up by way of plea as a bar to all discovery and relief, unless some matter is shown which calls for the interposition of a court of equity. Story, Eq. Jur. 8523; see Chambers v. Goldwin, 9 Ves. Ch. 265; Taylor v. Haylin, 3 Brown, Ch. 310; Perkins v. Hart; 11 Wheat. 237. Such would be matters of fraud or undue advantage taken of the relations between the parties, and where the parties occupy a fiduciary relation, a very slight cause will be sufficient to induce the court to reopen the account. Newman v. Payne, 2 Ves. Ch. 199; Todd v. Wilson, 9 Beav. Rolls, 486; Kennedy v. Brown, 13 C. B. n. s. 677.

• Willis v. Jernegan, 2 Atk. Ch. 252; Burk_v. Brown, 2 Atk. Ch. 397; Irving v. Young, 1 Sim. & S. Ch. 333; Murray v. Toland, 3 Johns. Ch. N. Y. 569; Freeland v. Heron, 7 Cranch, 147.

19 Sherman v. Sherman, 2 Vern. Ch. 276; 1 Eq. Cas. Abr. 12, pl. 10; Irving v. Young, 1 Sim. & S. Ch. 333; see Phillips v. Tapper, 2 Penn. St. 323.

11 Tickel v. Short, 2 Ves. Ch. 239; Willis v. Jernegan, 2 Atk. Ch. 252; Freeland v. Heron, 7 Cranch, 147; Murray v. Toland, 3 Johns. Ch. N. Y. 575; Jeremy, Eq. Jur. 547.

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which will be granted to the complainant will be to surcharge and falsify, unless there has been fraud on the part of the defendant."

The terms surcharge and falsify are used in contradistinction to each other in courts of equity. A surcharge is appropriately applied to the balance of the whole account, and supposes credits to have been omitted which ought to have been allowed ; a falsification applies to some items in the debits, and supposes that the item is wholly false or in some part erroneous.

3937. Another defence is lapse of time. When the demand is of a legal nature, and courts of law and equity have a concurrent jurisdiction, the latter, like the former, will allow the full operation of the statutes of limitations. But when the demand is not of a legal nature and it is strictly equitable, or in cases when the bar of the statute is inapplicable, courts of equity have established another rule, sometimes founded upon the analogies of the law, when such analogies exist, and at other times upon its own doctrine not to encourage stale demands and laches of the claimant. For this reason, after a considerable lapse of time, these courts will not interfere because of the difficulty of doing entire justice, in consequence of the original transaction having become uncertain by the probable loss of the evidence, and because public policy requires that the titles to property and the security of the possessor should not be lightly disturbed.14 These remarks do not wholly apply to cases where the complainant has a justifiable excuse for the delay, for if in such case evidence has been lost, it is not by his fault or neglect, and it would be unfair to deprive him of the right of investigating an account when he had been prevented from doing so by circumstances beyond his control.15

3938. In treating on the subject of agency, we have considered the various duties of agents toward their principals, so that here we have need for only a limited examination of the subject. The relation of principal and agent seems to comprise all cases in which one person is authorized to act for another; but no

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12 Pitt v. Cholmondeley, 2 Ves. sen. Ch. 565, 566; Vernon v. Vawdry, 2 Atk. Ch. 119; Chambers v. Goldwin, 8 Ves. Ch. 266; Drew v. Power, 1 Schoales & L. Ch. Ir. 192.

18 Pitt v. Cholmondeley, 2 Ves. sen. Ch. 565, 566. In this case Lord Hardwicke has stated the reasons for allowing the surcharge and falsification of accounts in the following clear and explicit terms: "Some general observations are to be made by way of postulatum. I am not now upon a question arising on an open general account, but merely upon a liberty given to the plaintiff to surcharge and falsify. The onus probandi is always on the party having that liberty; for the court takes it as a stated account, and establishes it; but if any of the parties show an omission, for which a credit ought to be, that is a surcharge; or if any thing be inserted, that is a wrong charge, he is at liberty to show it, and that is a falsification; but that must be by proof on his side; and that makes a great difference between the general cases of an open account, and where only to surcharge and falsify, for such must be made out. Now this is not only after great length of time, but also after a number of accounts settled between the parties, which adds considerable strength on the part of the defendant; because after such variety of accounts stated, and so often under consideration, it must be a strong case laid before the court to falsify. Another thing material in all these cases is, that this is a liberty to surcharge and falsify these several stated accounts between persons of great ability and capacity and great experience in that way. It is not like a liberty to surcharge and falsify an account (which the court often does) stated between guardian and ward, just after the ward has come of age, or between persons, one of whom is conusant of the subject matter of the account, the other not, or not in such a degree; in which the court will take it with a latitude, and make that the ingredient; here the parties were on a par, great and equal skill and knowledge on both sides, and, therefore, the court expects clear evidence before they will make any variation."

is Mooers v. White, 6 Johns. Ch. N. Y. 360; Lewis v. Baird, 3 McLean, C. C. 83; Robinson v. Hook, 4 Mas. 6. C. 139; Sherwood v. Sutton, 5 id. 143; Willison v. Watkins, 3 Pet. 44; Piatt v. Vattier, 9 Pet. 405; Creath_v. Sims, 5 How. 192.

Lopdell v. Creagh, 1 Bligh, Hou. L. N. s. 255; Russell v. Green, 10 Conn. 269. See Jeremy, Eq. Jur. 549.

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one can be called to an account unless he has had the control or management of property belonging to the principal.

When an agent has so had the control or management of such property, he is bound to keep a regular account of his transactions, and to be always ready to settle them.17

In these cases, as in others of account, however, the mere relation of principal and agent does not justify bringing a bill for account; there must be either some complication of accounts, of receipts, and disbursements,18 or some necessity for the discovery of facts peculiarly within the knowledge or control of the defendant.19

Courts of equity assume jurisdiction in cases of accounts against agents, on the ground that courts of law cannot do complete justice, because they have no means of compelling the production of the books of account and vouchers, as the courts of equity have, by means of a bill of discovery ; 21 these latter courts, having thus got possession of the cause, will proceed to administer the proper relief to prevent a multiplicity of suits.

There are many cases of implied agencies where the parties may be called to an account by a bill in chancery. This is the case between tenants in common, between part owners of goods or of ships, between the owners of ships and the masters, and between joint tenants. In all these cases a bill of discovery may be filed to ascertain the amount of property the defendant has received and the profits which he has made.22

When, in the course of an agency, the agent is guilty of a fraud in relation to property, and then dies, the courts of law have no jurisdiction if it be a case where the tort dies with the person; but courts of equity will consider the loss sustained as a debt due by his estate.23

3939. For the purpose of doing justice to all the parties, courts of equity assume jurisdiction over matters of account in cases of contribution. The payment which is made by one person to another to indemnify him for having paid more than his share of a liability for which they were jointly bound, is called contribution.24

3940. There are many cases of contribution in which the jurisdiction of courts of equity will be exercised for the purpose of justice. A few will here be enumerated.

When there is a deficiency of assets for the payment of debts and legacies,

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18 Middleditch v. Sharland, 5 Ves. Ch. 91; White v. Lady Lincoln, 8 Ves. Ch. 369.

17 Law v. E. I. Company, 4 Ves. Ch. 834; Macdonald v. Macdonald, 1 Bligh, Hou. L. 315; Pearce v. Green, 1 Jac. & W. Ch. 135, 140; Ormond v. Hutchinson, 13 Ves. Ch. 53.

Barry v. Stevens, 31 Beav. Rolls, 238; Smith v. Leveaux, 1 Hurlst. & M. Ch. 123; Hemings v. Pugh, 4 Giff. Ch. 456 ; Post v. Kimberly, 9 Johns. Ch. N. Y. 493.

19 Dinwiddie v. Bailey, 6 Ves. Ch. 136; Moses v. Lewis, 12 Price, Exch. 502; Frietas v. Don Santos, 1 Younge & J. 574; Coquillard v. Suydam, 8 Blackf. Ind. 24.

20 In some of the states the courts of law can compel the production of books of a party upon the application by the opposite party, by virtue of statutory provisions.

21 East India Co. v. Henchman, 1 Ves. Ch. 289; Mackenzie v. Johnson, 4 Madd. Ch. 374; Pearce v. Green, 1 Jac. & W. Ch. 135; Ludlow v. Simond, 2 Caines, Cas. N. Y. 1, 38, 52.

22 Doddington v. Hallett, 1 Ves. Ch. 497 ; Ex parte Young, 2 Ves. & B. Ir. Ch. 242; Strelly v. Winson, 1 Vern. Ch. 297; Pulteney v. Warren, 6 Ves. Ch. 73; Benson v. Heathorn, 1 Younge & C. Ch. 326 ; Clarke v. Tipping, 9 Beav. Rolls, 284; Field v. Craig, 8 All. Mass. 357.

23 Lord Hardwicke v. Vernon, 4 Ves. Ch. 418. It must be remembered that where a party has committed an injury or a tort, by which his estate has been benefited, and then dies, the tort may be waived, and an action for money had and received may be maintained against his personal representatives. Hambly v. Trott, Cowp. 374. In equity it is immaterial whether his estate has been benefited or not; if his fraud has caused a loss to the principal, his estate is responsible. Lord Hardwicke v. Vernon, 4 Ves. Ch. 411, 418. 24 See Lawrence v. Cornell, 4 Johns. Ch. N. Y. 545. See before, 1433, 1434. VOL. II.-3 R

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