20170716

ACCOUNT, ACCOUNTANT

    16.7.17  

ACCOUNT, remedies. This is the name of a writ or action more properly called account render.
2. It is applicable to the, case of an unliquidated
demand, against a person who is chargeable as bailiff or receiver. The use of it, is where the plaintiff wants an account and cannot give evidence of his right without it. 5 Taunt. 431 It is necessary. where the receipt was directed to a merchandising which makes all uncertainty of the nett remain, till the account is finished; or where a man is charged as bailiff, whereupon the certainty of his receipt appears not till account. Hob. 209.; See also 8 Cowen, R. 304; 9 Conn. R. 556; 2 Day, R. 28; Kirby, 164; 3 Gill & John. 388; 3 Verm. 485; 4 Watts, 420; 8 Cowen, 220. It is also the proper remedy by one partner against another. 15 S. & R. 153 3 Binn. 317; 10 S. & R. 220; 2 Conn. 425; 4 Verm. 137; 1 Dall. 340; 2 Watts 86.
3. The interlocutory judgment in this action is (quod computet) that the defendant render an account upon which judgment auditors are assigned to him to hear and report his account. (See I Lutwych, 47; 3 Leon. 149, for precedents) As the principal object of the action is to compel a settlement of the account in the first instance, special bail cannot be demanded, (2 Roll. Rep. 53; 2 Keble, 404,) nor are damagos awarded upon the first judgment, nor given except ratione interplacitationis, (Cro. Eliz. 83; 5 Binn. 664; 24 Ed. 3. 16; 18 Ed. 3. 55; Reg. Brev. 136 b,) although it is usual to conclude the count with a demand of damages. (Lib. Int. fo. 16. fo. 20; 1 Lutw. 51. 58; 2 H. 7. 13.) The reason assigned for this rule, is, that it may be the defendant will not be found in arrears after he has accounted, and the court cannot know until the settlement of the account whether the plaintiff has been endamaged or not. 7 H. 6. 38.
4. This action combines the properties of a legal and equitable action. The proceedings up to the judgment quod computet, and subsequent to the account reported by the auditors are conducted upon the principles of the common law. But the account is to be adjusted upon the most liberal principles of equity and, good faith. (Per Herle, Ch. J. 3 Ed. 3. 10.) The court it is said are judges of the action – the auditors of the account, Bro. Ab. Ace. 48, and both are judges of record, 4 H. 6. 17; Stat. West. 2. c. 11. This action has received extension in Pennsylvania. 1 Dall. 339, 340.
5. The fist judgment (quod computet) is enforeed by a capias ad computandum where defendant refuses to appear before the auditors, upon which he may be held to bail, or in default of bail be made to account in prison. The final judgment quod recuperet is enforeed by fi. fa. or such other process as the law allows for the recovery of debts.
6. If the defendant charged as bailiff is found in surplusage, no judgment oan be entered thereon to recover the amount so found in his favor against the plaintiff, but as the auditors are judges of record, he may bring an action of debt, or by some authorities a sci. fac. against the plaintiff, whereon he may have judgment and execution against the plaintiff. See Palm. 512; 2 Bulst. 277-8; 1 Leon. 219; 3 Keble Rep. 362; 1 Roll. Ab. 599, pl. 11; Bro. Ab. Acc. 62; 1 Roll. Rep. 87. See Bailiff, in account render.
7. In those states where they have courts of chancery, this action is nearly superseded by the better remedy which is given by a bill in equity, by which the complainant can elicit a discovery of the acts from the defendant under his oath, instead of relying merely on the evidence he may be able to produce. 9 John. R. 470; 1 Paige, R. 41; 2 Caines' Cas. Err. 38, 62; 1 J. J. Marsh. R. 82; Cooke, R. 420; 1 Yerg. R. 360; 2 John. Ch. R. 424; 10 John. R. 587; 2 Rand. R. 449; 1 Hen. & M9; 2 M'Cord's Ch. R. 469; 2 Leigh's R. 6.
8. Courts of equity have concurrent jurisdiction in matters of account with courts of law, and sometimes exclusive jurisdiction at least in some respects: For example; if a plaintiff be entitled to an account, a court of equity will restrain the defendant from proceeding in a claim, the correctness of which cannot be ascertained until the account be taken; but not where the subject is a matter of set-off. 1 Sch. & Lef. 309; Eden on Injunct. 23, 24.
9. When an account has voluntarily been stated between parties, an action of assumpsit may be maintained thereon. 3 Bl. Com. 162; 8 Com. Dig. 7; 1 Com. Dig. 180; 2 Ib. 468; 1 Vin. Ab. 135; Bac. Ab. h. t.; Doct. Pl. 26; Yelv. 202; 1 Supp. to Ves. Jr, 117; 2 Ib. 48, 136. Vide 1 Binn. R. 191; 4 Dall. R. 434; Whart. Dig. h. t. ; 3 Wils. 73, 94; 8 D.& R. 596; Bull. N. P. 128; 5 Taunt. 431; U. S. Dig. h. t.; 2 Greenl. Ev. 34-39.
ACCOUNT, practice. A statement of the receipts and payments of an executor, administrator, or other trustee, of the estate confided to him.
2. Every one who administers the affairs of another is required at the end of his administration to render an account of his management of the same. Trustees of every description can, in general, be compelled by courts of chancery to settle accounts, or otherwise fully execute their trusts. Where there are no courts of chancery, the courts of common law are usually invested with power for the same purposes by acts of legislation. When a party has had the property of another as his agent, he may be compelled at common law to account by an action of account render.
3. An account is also the statement of two merchants or others who have dealt together, showing the debits and credits between them.
ACCOUNT-BOOK. A book kept by a merchant, trader, mechanic, or other person, in which are entered from time to time the transactions of his trade or business. Vide Books; Entry; Original entry.
ACCOUNT CURRENT. A running or open account between two persons.
ACCOUNT IN BANK, com. law. 1: A fund which merchants, traders and others have deposited into the common cash of some bank, to be drawn out by checks from time to time as the owner or depositor may require. 2. The statement of the amount deposited and drawn, which is kept in duplicate, one in the depositor's bank book, and the other in the books of the bank.
ACCOUNT STATED. The settlement of an account between the parties, by which a balance is struck in favor of one of them, is called an account stated.
2. An acknowledgnaent of a single item of debt due from the defendant to the plaintiff is sufficient to support a count on an account stated. 13 East, 249; 5 M.& S. 65.
3. It is proposed to consider, 1st, by whom an account may, be stated; 2d, the manner of stating the account; 3d, the declaration upon such, an account; 4th, the evidence.
4. 1. An account may be stated by a man and his wife of the one part, and a third person; and unless there is an express promise to pay by the hushand, Foster v. Allanson, 2 T. R. 483, the action must be brought against hushand and wife. Drue v. Thorne, Aleyn, 72. A plaintiff cannot recover against a defendant upon an account stated by him, partly as administrator and partly in his own private capacity. Herrenden v. Palmer, Hob. 88. Persons wanting a legal capacity to make a contract cannot, in general, state an account; as infants, Truman v. Hurst, 1 T. R. 40; and persons non compos mentis.
5. A plaintiff may recover on an account stated with the defendant, including debts due from the defendant alone, and from the defendant and a deceased partner jointly. Riebards v. Heather, 1 B.& A. 29, and see Peake's Ev. 257. A settlement between partners, and striking a balance, will enable a plaintiff to maintain an action on such stated account for the balance due him, Ozeas v. Johnson, 4 Dall. 434; S. C. 1 Binn. 191; S. P. Andrews v. Allen, 9 S. & R. 241; and see Lamelere v Caze, 1 W. C.C.R. 435.
6. – 2. It is sufficient, although the account be stated of that which is due to the plaintiff only without making any deduction for any counter-claim for the defendant, Styart v. Rowland, 1 Show. 215. It is not essential that there should be cross demands between the parties or that the defendant's acknowledgment that a certain sum was due from him to the plaintiff, should relate to more than a single debt, or transaction. 6 Maule & Selw. 65; Knowles et al. 13 East, 249. The acknowledgment by the defendant that a certain sum is due, creates an implied promise to pay the amount. Milward v. Ingraham, 2 Mod. 44; Foster v. Allanson, 2 T. R. 480.
7. – 3. A count on an account stated is almost invariably inserted in declarations in assumpsit for the recovery of a pecuniary demand. See form, 1 Chit. PI. 336. It is advisable, generally, to insert such a count, Milward, v. Ingraham, 2 Mod. 44; Trueman v. Hurst, 1 T. R. 42; unless the action be against persons who are incapable in law to state an account. It is not necessary to set forth the subject-matter of the original debt, Milward v. Ingraham, 2 Mod. 44; nor is the sum alleged to be due material. Rolls v. Barnes, 1 Bla. Rep. 65; S. C. 1 Burr. 9.
8. – 4. The count upon an account stated, is supported by evidence of an acknowledgment on the part of the defendant of money due to the plaintiff, upon an account between them. But the sum must have been stated between the parties; it is not sufficient that the balance may be deduced from partnership books. Andrews v. Allen, 9 S.&. R. 241. It is unnecessary to prove the items of which the account consists; it is sufficient to prove some existing antecedent debt or demand between the parties respecting which an account was stated, 5 Moore, 105; 4 B.& C. 235, 242; 6 D.& R. 306; and that a balance was struck and agreed upon; Bartlet v. Emery, 1 T. R. 42, n; for the stating of the account is the consideration of the promise. Bull. N. P. 129. An account stated does not alter the original debt; Aleyn, 72; and it seemsnot to be conclusive against the party admitting the balance against him. 1 T. R. 42. He would probably be allowed to show a gross error or mistake iu the account, if he could adduce clear evidence to that effect. See 1 Esp. R. 159. And see generally tit. Partner's; Chit. Contr. 197; Stark. Ev. 123; 1 Chit. Pl. 343.
9. In courts of equity when a bill for an account has been filed, it is a good defence that the parties have already in writing stated and adjusted the items of the account, and struck a balance; for then an action lies it law, and there is no ground for the interference of a court of equity. 1 Atk. 1; 2 Freem. 62; 4 Cranch, 306; 11 Wheat. 237; 9 Ves. 265; 2 Bro. Ch. R. 310; 3 Bro. Ch. R. 266; 1 Cox, 435.
10. But if there has been any mistake, ommision, fraud, or undue advantage, by which the account stated is in fact vitiated, and the balance incorrectly fixed, a court of equity will open it, and allow it to be re-examined; and where there has been gross fraud it will direct the whole account to be opened, and examined de novo. Fonbl. Eq. b. 1, c. 1 3, note (f); 1 John. Ch. R. 550.
11. Sometimes the court will allow the account to stand, with liberty to the plaintiff to surcharge and falsify it; the effect of this is, to leave the account in full force and vigor, as a stated account, except so far as it can be impugned by the opposing party. 2 Ves. 565; 11 Wheat. 237. See Falsification; Surcharge.
ACCOUNT OF SALES. comm. law. An account delivered by one merchant or tradesman to another, or by a factor to his principal, of the disposal, charges, commissions and net proceeds of certain merchandise consigned to such merchant, tradesman or factor, to be sold.
ACCOUNTANT. This word has several significations: 1. One who is versed in accounts; 2. A person or officer appointed to keep the accounts of a public company; 3. He who renders to another or to a court a just and detailed statement of the administration of property which he holds as trustee, executor, admnistrator or guardian. Vide 16 Vin. Ab. 155.

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