sidered as standing upon its own specialities; and so is the case of a Steward (1).

Where there have been various dealings between Landlord and Tenant, so as to produce an Account too complicated to be taken at Law, and the landlord brings an ejectment for non-payment of rent, the tenant may file a bill, before judgment at law, for an Account, on the footing of those dealings, and to have the balance applied to the rent claimed to be due, and the tenant need not bring in the rent under the statute 4 Geo. 1. c. 28 (m).

If the Tenant's counter-demand amount to a legal set-off, he cannot have relief in Equity; and it was thought doubtful whether Equity would relieve in respect of an equitable set-off (n).

The court gives an account in the case of Mines (o), because it is in the nature of a Trade (p); and in the case of Timber cut down (g), to prevent a multiplicity of suits (r); though as to this, if there is not a ground for an Injunction to restrain Waste, as where more timber is threatened to be cut, the party must go to Law (s). Lord Thurlow, indeed, appears to have thought, that where a Tenant for life, punishable for waste, fells timber, a Bill for an Account by a Remainder-man in fee lies against him, on the ground that the Tenant for life has made himself Bailiff to the plaintiff (t); though that does not seem

(1) 6 Ves. 136.

(m) O'Connor v. Spaight, 1 Sch. & Lefr. 305, &c. (n) Townrow v. Benson, 3 Madd. Rep. 203.

(0) Bishop of Winchester v. Knight, 1 P. Wms. 406.

(p) Story v. Lord Windsor, 2 Atk. 630.

(q) 1 P. Wms. 406.

(r) Pulteney v. Warren, 6 Ves. 89.

(s) 1 P. Wms. 406. Jesus Coll. v. Bloom, 3 Atk. 262.

(t) Lee v. Alston, 1 Ves. Jun, 82. S. C. 1 Bro. C. C, 196.

consistent with the doctrine in the same case, very viz. that the remainder-man must take the money the timber produced, and not the real value of the timber, which even a court of Law would have given him (u).

A factor, unless he be an infant (a), is compellable to account in Equity, and likewise for a deceased co-factor (y); and the representatives of a factor are accountable (~); and no salary will be allowed to a factor or agent when he acts against the interest of his Principal (a).

In two early cases (b), it was held, that where a factor had omitted at his peril to pay duties to a foreign King abroad, the Principal could not insist upon payment of what he had so saved by not paying the duty; "he that hath possession having right against all but him that hath the very right;" but where the duties had not been paid at home, the Factor was held accountable to the Principal (c).

A conuzor has a right to file a bill for an Account against a conuzee, to see if the conuzee upon the extended value under an elegit, has received a satisfaction for his whole debt (d); but in these cases, it has been said, the Tenant by elegit is never made to pay costs (e); and the conuzor will not, it seems, be relieved without paying the conuzee all that is due to him, for Principal, Interest, and Costs, though they

exceed the Penalty (f); according to the old maxim of Equity, He that will have Equity done to him, must do it to the same Person. The arrears of a RentCharge may, it seems, be recovered in Equity (g).

An heir cannot, merely as heir, file a Bill for an Account, unless he states an impediment to his recovering at Law: as, that the defendant has the title deeds necessary to maintain his title, or that terms are in the way of his recovery at Law; or some other legal impediments, which do, or may probably, prevent it (h); Bills of this description are what are termed Ejectment Bills, or an Equitable Fjectment; and as in these cases, where the validity of a Will comes in question, it cannot be determined by a Court of Equity; it sends that to be determined by the proper tribunal, by directing the heir to bring an Ejectment, providing, at the same time, that the defendant shall not set up at Law a term satisfied or unsatisfied (i); and those obstacles being removed, and a trial had in that way under the control of a Court of Law, they come back for the account, the deeds, &c. which course leaves all the encumbrances, just as much encumbrances as if the possession had not been changed. There is great convenience in giving relief in that shape rather than by directing issues (k), the granting of which is discretionary in the Court(); for the question, whether a new trial

(f) Hale v. Thomas, 1 Vern. 349; and see Godbery v. Watson, 3 Atk. 517.

(g) Foster v. Foster, 1 Vern. 386; but see Champernoon v. Gubbs, Ib. 382.

(h) Pulteney v. Warren, 6 Ves. 89; and see Dormer v. Fortescue, 2 Atk. 284. Hop

kins v. Bond, 1 Sch. & Lefr. 421; and see Pemberton v. Pemberton, 13 Ves. 297. Crow v. Tyrell, 3 Madd. Rep. 179.

(i) See Leighton v. Leighton, 1 P. Wms. 671.

(k) As was done in Pemberton and Pemberton, 13 Ves. 290. (1) Pikev. Hoare, 2 Eden, 183.

should or should not be had, is discussed with much more satisfaction, where the trial was had, than in the court out of which the issue was directed. In bills, however, of this description, there must, it seems, be some averment upon the Record, as well as proof, that those obstacles do exist which may prevent an ejectment; the admission of such obstacles by infant defendants is insufficient (m). To an ejectment Bill, stating outstanding Leases, and praying relief, a Plea that there were no such outstanding Leases, has been held good (n).

With respect to the Account ordered of Rents and Profits of Estates, in these and similar cases, the rule appears to be, that where a man brings his Bill in Equity, in respect of a trust, and upon a mere equitable title, he will in Equity recover the Estate; but, as upon a legal title no more than six years mesne profits are recoverable at Law, so where an Estate in trust is recovered in Equity, the account of rents and profits is not extended beyond six years (o); and under special circumstances the Court will only decree an Account of Rents and Profits from the time of fyling the Bill; as where the defendant had no notice of the plaintiff's title, nor had the deeds and writings in his custody, in which the plaintiff's title appeared; or where the title of the plaintiff appeared by deeds in a stranger's custody. So, where there hath been any default or laches in the plaintiff in not

(m) Pemberton. Pemberton, 13 Ves. 298; and see Jones v. Jones, 3 Meriv. 173; and Barber and Hunter, mentioned in that case, p. 170 and 173.

(n) Armitage v. Wadsworth,

1 Madd. Rep. 189, et vide Jones v. Jones, 3 Meriv. 173.

(0) See Readev. Reade, 5 Ves. 749, 750. Stackhouse v. Barnston, 10 Ves. 469; but see what is said in Dormer v. Fortescue, 3 Atk. 190.

asserting his title sooner (p), and he has lain by, the Court has often thought fit to restrain it to the filing of the Bill. In the case of a Bill brought by an infant to have possession of an estate, and an Account of Rents and Profits, the Court will decree an Account from the time the infant's title accrued; for every person who enters on the estate of an infant is considered as entering as guardian or bailiff for the infant (9). Where, indeed, there is a verdict against the infant's title he can have no Account till he has recovered at Law, and the Bill will be retained, and a trial in Ejectment directed (r). There are other cases where the Court will, merely upon a legal title, give the account from the filing of the Bill; as, whereever the plaintiff has been kept out of the Estate by the fraud, misrepresentation, or concealment of the defendant (s).

If there is no trust, nor infant (t) in the case, nor any entry made by him who is entitled to the mesne profits, Equity will not decree an account of rents and profits until a recovery has been had at Law (u). But where a discovery is necessary of the deed under which the plaintiff's title arises, and relief is prayed to have it produced at all trials at Law, and to have attested copies, an account of profits will be decreed, without

(p) See Lockey v. Lockey, Prec. Ch. 518.

(q) Dormer v. Fortescue, 3 Atk. 130; see Yallop and Holworthy, 1 Eq. Abr. 7. Newburgh v. Bickerstaffe, 1 Vern. 296, and see Pettiward v. Prescott, 7 Ves. 541.

(r) Newburgh v. Bickerstaffe,

(s) 3 Atk. 130; and Bennet v. Whitehead, 2 P. Wms. 645, where the deeds and writings making the plaintiff's title were concealed by defendant. Townshend v. Ash, 3 Atk. 340.

(t) Roberdan v. Rous. 1 Atk. 544. (u) Norton v. Frecker, 1 Atk.