six months after the true value shall have been ascertained, with a particular inventory, and account and valuation on oath, the commissioners may expunge the stamp and substitute another, and make an allowance for the difference, as in cases of spoiled stamps; or, if the difference be considerable, repay the same in money, at their discretion." An executor is also bound to apply to rectify the stamp if his estimate has been too low, and he must pay the difference.

Upon the conclusion and final winding up of any transactions, wherein one party is an accounting party, it is always a matter of prudence for him to obtain a release, which should be under seal. All trustees, executors, agents, stewards, &c., should do so.

CHAPTER VIII.

ACCOUNTS IN THE COURT OF CHANCERY.

THE great tribunal which has the cognizance of accounts is the Court of Chancery; nor can the investigation of accounts be well entrusted to any court founded upon principles different from those of that court. All proof in matters of account must commonly be confined to the knowledge of the accounting party. And no court without the extensive and inquisitorial powers of a court, which can interrogate upon oath both defendant and the plaintiff, can be in any manner adequate to deal with such a subject. The Courts of Bankruptcy and Insolvency may be regarded as branches of the Court of Chancery, and have power to examine the parties upon oath.

There was formerly an action of account in the courts of common law, and the accounts were referred to the auditors; but it has been long disused. The ecclesiastical courts also are so limited in their powers and jurisdiction, that complex accounts rarely come before them. It is not, however, every case of apparent account in which the Court of Chancery will entertain a suit. The simple circumstance of one person being indebted to another is not sufficient.

In all such trans

actions as rent, tolls, trade, and the like, when dealings are in the simple and ordinary course of all Dr upon one side, and all C' upon the other side, Equity will not entertain a suit for an account; as these are the proper subjects of an action at law, when the creditor must prove his claim. The court will, however, sometimes, upon a sufficient case, assist, by putting the plaintiff in an action upon his oath. If a summary process and accountant-masters were introduced, as suggested in a former chapter, it is worthy of consideration whether these matters might not be altogether removed into equity, and the masters be invested with the power of examining, vivá voce, both plaintiff and defendant upon oath. Again, an item, which is simply matter of set-off, is not sufficient to induce the interference of the court; for the courts of common law take cognizance of set-off under a statute.†

In all matters of illegal contract, such as smuggling and illegal under-writing, equity will not assist a plaintiff who comes into court without clean hands. Matters of revenue are the subjects of the Court of Exchequer,+ and the Court of Chancery will not interfere without the consent of the crown.

To induce the interference of the court, there must be either

1. Mutual demands and complicated accounts.§ 2. Some fiduciary subject where the position of the accounting party is such, that any default in his accounts becomes a breach of trust.

* The court will entertain a suit for tolls in the form of a bill of peace. † 2 Geo. II., c. 24, § 13, made perpetual by 8 Geo. II., c. 24, § 4 & 5. Reeve v. Attorney-General, 2 Atk. 223. Coomb v. Trist, Mar. 26, 1835.

Mad. 28.

§ Dinwiddie v. Bailey, 6 Ves. 136.

3. The court will also direct an account, as a collateral incident, where its powers have been put in requisition for some other purpose.

4. In some other cases, also, which stand upon their own peculiar circumstances, the court will grant an account.

I. By far the greater portion of accounts, in which mutual demands obtain, are partnership accounts; and the inefficiency of the Court of Chancery to deal out justice between the parties, has been already pointed out. In other cases of mutual demand and cross claim and complicated accounts, the court will give relief: but in these, as well as in other instances, the strict system of the court in demanding vouchers for every item, and giving too little discretion to the masters in chancery, is severely felt.

In the remaining branches the court is much more successful.

II. Under the second head, the court entertains suits against all trustees, executors, administrators, and against mortgagees, who, by taking possession of the estate, have put themselves into the position of accounting parties. Solicitors, also, entrusted by their clients. with money, and all agents, factors, stewards, and servants entrusted with monies, are bound ex officio to keep their accounts correctly; and it is laid down that a factor or agent shall not be allowed his salary where he acts contrary to the interests of his principal, or where he has not kept his accounts, nor can he impute neglect to his employers.† Receivers and committees

*White v. Lady Lincoln, 8 Ves. 369.

*

5 Ves. 492; 7 Ves. 599. Pearse v. Green, 1 J. & W. 135. Jenkins v Gold, 3 Russ. 385.

are of the same class; but, as mere officers, they are under the immediate superintendence of the court or chancellor.

III. In all cases where a bill may be filed to put the powers of the court into requisition for any other purpose upon equitable grounds, an account may be prayed as a collateral incident; as, where an injunction is granted to restrain the felling of timber,* or the piracy of a copyright, an account will be granted, and, it seems, in all instances of waste, when an injunction is obtained.

IV. The court will also entertain suits for account in matters of tithe and dower.

An account in equity is obtained by filing a bill against the accounting party, which sets forth all the material circumstances of the case in which the plaintiff claims an account. It then interrogates the defendant upon his oath as to the truth of the facts stated, and prays an account, and such other remedies as the circumstances require.

The defence which may be set up to this bill will depend upon circumstances. If, upon the case stated by the bill itself, it appears that the plaintiff is not entitled to the relief, the defendant will demur to the bill. If the defendant can set up any extrinsic facts by which he can show that the plaintiff is not entitled, he may take advantage of it by a plea. But if he can manage neither, he must, upon his oath, put in a full answer to the bill.

* Jesus College v. Bloome, 2 Atk. 262. Lord Hardwicke, however, put this upon the ground of preventing a multiplicity of suits.

† Baily v. Taylor, 1 R. & M. 73, and cases cited 6 Ves. 701 n.; 9 Ves. 346.