receives it does not object against it in a second or a third post (n).

And with respect to foreign Merchants, if one Merchant sends an Account current to another in a different Country, on which a balance is made due to himself, and the other keeps it by him two years without objection, the rule in Equity, and of Merchants, is, that it is considered as a stated Account (0).

It is a Rule, that a stated Account shall not be unravelled, and that such Accounts carry Interest (p); but where a Fraud appears in a stated Account, the whole will be opened, though of a great many years standing (q). And though an Account be settled by Arbitrators, it is not conclusive if any error can be shown in the Account (r). But if a Bill be filed to impeach a settled Account, specific Errors must be shown (s), except, perhaps, in the case of an Attorney, where upon the face of the Account the Attorney admits that he has not given credit, and produced that state of his affairs which the Client was entitled to have (t); but where the Accounts are not required to be set aside for fraud, but, letting them stand, it is sought to surcharge and falsify them. it is a fixed Rule that some error must be charged, and this though the Account contain the usual wordi

(n) 2 Vern. 276.

(o) Denton v. Shellard, 2 Ves. 239.

(p) Duke of Marlborough and Strong, 8 March 1721. Dom. Proc. Lord Harcourt's MS. Tables

(q) Vernon v. Vawdrey, 2 Atk. 119.

(r) Tottenson v. Peat, 3 Atk. 530.

(s) Anon. 2 Freem. 62. Chambers v. Goldwin, 5 Ves. 837. Dawson and Dawson, 1 Atk. 1; and see Drew v. Power, 1 Sch. & Lefr. 192.

(t) Matthews v. Walwyn, 4 Ves. 125.

"Errors excepted (u):" for it is impossible for the Defendant to defend himself, if under a general charge, not specifying any error, the Plaintiff may come at the hearing with the proof of those errors of which the Defendant has heard nothing (r). There must be error enough upon the Bill to show there is reason for it; and if the Plaintiff proves some of those Errors he entitles himself to a Decree (y).

Where a Bill was filed for an Account, and a settled Account was suggested by the Answer, but not proved, liberty was given in the Decree to surcharge and falsify, if the Master should find any settled Account (2). When parties are thus at liberty to surcharge and falsify, they are not confined to mere errors of fact, but may take advantage of errors in Law (a).

Where liberty is given 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 can show an omission for which credit ought to be, that is a surcharge; or if any thing is inserted that is a wrong charge, he is at liberty to show it, and that is falsification; but that must be a proof on his side; and that makes a great difference between the general cases of an open Account, and where only leave is given to surcharge and falsify, for such must be made out (b).

(u) 3 Bro. C. C. 266; yet see Proud v. Combs, 2 Freem. 183. (x) Chambers v. Goldwin, 9 Ves. 266. Taylor v. Haylin, Haylin, 2 Bro. C. C. 310; and see Bourke and Bridgman, 2 Barn. 272. Johnson against Curtis, 3 Bro. C. C. 266.

(y) Twogood v. Swanston, 6 Ves. 486.

(z) Kinsman v. Barker, 14 Ves. 579.

(a) Roberts v. Kuffin, 2 Atk. 112. S. C. Barn. 259.

(b) Pit v. Cholmondeley, 2 Ves. 566.

It has been laid down as a Rule, to be departed from only on very special circumstances, that a Man standing in the Relations of Agent, Auditor, Land Steward, and Manager, is bound to keep regular Accounts of his transactions on behalf of his Employer; not only Accounts of Payments, but Accounts of Receipts (c); and if he has neglected to keep regular Accounts he will not be permitted to make a demand for Work and Labour in that character, with reference to which he has kept no Account (d).

And if an Agent or Bailiff has confounded his Principal's property with his own, he is chargeable for the whole, except what he can prove to be his

own.

Bills for Tithes are, as matters of Account, very frequent in the Court of Chancery, but the Jurisdiction of the Chancellor in Tithe causes is confessedly no part of his proper and natural Jurisdiction (e): it is not an original Jurisdiction (f), but was assumed as incidental and collateral to an Account and Discovery (g). It was not till after the Restoration that the Jurisdiction of the Chancellor, in this respect, was completely established (h). In the 29th Charles II. Lord Nottingham declared that the Court of Chancery had cognizance in matters of Tithe, as

well as the Exchequer, and that the Plaintiff had his choice of the Court (i). The Court of Exchequer is the original and proper Jurisdiction for Tithes (k), that Court having for centuries taken conuzance of them; the ground of which, probably, was, that Tithes were considered as part of the possessions of the Crown, and therefore the Exchequer, as a Court of Revenue, had Jurisdiction respecting them (7). Lord Nottingham, however, seems to have dated the origin of the Exchequer Jurisdiction over Tithes in the reign of Henry VIII (m). There is some difference in these Tithe cases, as to the proceedings in the Court of Chancery and the Exchequer. In the Exchequer, an Account of Tythes is decreed, not for the future, but only up to the time of bringing the Bill; but in the Court of Chancery the decree is for an Account up to the time of the Decree, as said in some cases (n); or as Lord Hardwicke says, in another "down even to the time of the Master's Report (o); or as Baron Clarke says, in a third case, "an Account for Tithes may be carried on as long as the suit is depending between the Parties (p)." It is observable also, that though the demand for Tithes be ever so small and inconsiderable, yet still a Bill in Equity may be filed for the recovery of them (q).

case,

Where the title to Tithes is clearly made out, the Court of Chancery, or the Court of Exchequer,

(i) See Gwillim's Tithe Cases, P. 1084.

(k) 3 Atk. 247.

() 2 Freem. 27. 2 Ch. Cas. 237. Gwillim, 527.

(m) Vid. Har. Co.Litt. p. 159. n. 4, and Hard. 236. 1 Freem.

(n) Vid. 2 Atk. 136. 2 P. Wms. 463. Carleton v. Brightwell.

(0) 2 Atk. 137.

(p) Bell v. Read, 3 Atk.

(q) 4 Bro. P. C. p. 314.

decrees an Account; and where a modus, or real composition is pleaded, and supported by reasonable Evidence, it is the practice to direct an Issue at Law before they decree against the Common Law right of the Parson. The issue from the Court of Chancery is tried in the King's Bench or Common Pleas; and an Issue from the Exchequer is tried on the Law side of the same Court (r).

By the 37th Henry VIII. ch. 12, s. 19 and 20, it is directed," that if any variance arise in the city for non-payment of Tithes, or if any doubt arise upon the division of any rent, or Tithes, or of any assessment thereof, or upon any other thing contained in this Decree, upon complaint made by the party grieved, the Mayor, by the advice of counsel, shall call the parties before him, and make a final end, with costs, to be awarded by the direction of the Mayor, and his assessments according to the decree; but if the Mayor make not an end thereof within two months, or if any of the parties find themselves aggrieved, the Lord Chancellor, upon complaint made to him within three months next following, shall make an end in the same with costs." But this particular Jurisdiction thus created did not extinguish the ancient Jurisdiction, it being a Rule, that an Act of Parliament creating a special Jurisdiction never ousts the Jurisdiction of Westminster Hall, without special Words (s).

(r) Vid. Lygon and Strutt, 2 Anstr. 601. Baker and Athill, 2 Anstr. 493.

(s) Hard. 116, 130. Kinaston and Millar, 2 Dick. 773; and Warden and Minor Canons of

St. Paul's v. Cricket, 2 Ves. jun. 563; and vid. Warden, &c. of St. Paul's v. Morris, 9 Ves, 155; and Antrobus and East India Company, 13 Ves. 9.