insertion in one ship, and the duplicate in another. When inserted, the papers containing such insertion are returned to this country to be produced to the Master.

Every advertisement is signed by the Master, for which 17. 1s. is paid; if the advertisement is for foreign insertion, and both are embodied in one, 21. 2s. The Gazettes containing the general and peremptory advertisements are required to be produced to the Master's clerk on settling the draft report.

*CHAPTER XIII.

[ *111 ]

THE MANNER OF TAKING ACCOUNTS IN THE MASTER'S OFFICE.

Distinction between a general account and liberty to surcharge and falsify, 111. Manner of directing an account, 112. How accounts taken in the Master's office, 114. Debtor and creditor account, 114. Charge, 115. Discharge, 117. What items in discharge must be vouched, and how, 117. How to be investigated, 120. Effect of its not being brought in, 120.

THERE are two principles upon which an account may be decreed to be taken; the one where the account is directed generally against a party; the other where a stated and settled account having been set up against the bill, the plaintiff is allowed by the decree only to surcharge and falsify. If a general account is directed, it is incumbent on the accounting party to prove all his payments: if the decree only gives liberty to surcharge and falsify, the burden of proof lies on the party having such liberty, for the Court takes it as a stated account, and establishes it. (Pitt v. Cholmondeley, 2 Ves. 565.) If the party can show an omission for which credit ought to be given, 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 a falsification; but that must be shown by proof on his side, and that makes a great difference in an open account, and liberty to surcharge and falsify. (Pitt v. Cholmondeley, 2 Ves. 565.)[a] A party who is at liberty to surcharge and falsify, is not merely confined to *errors [*112]

[a] See 1 Story's Eq. Jur. 449, 500; Perkins v. Hart, 11 Wheat. 237. 256. A party cannot surcharge and falsify an account, unless upon the ground of mistake or error, distinctly charged. Stoughton v. Lynch, 2 Johns. Ch. Rep. 217.

in facts, but may take advantage of errors in law. (Roberts v. Kuffin, 2 Atk. 112.) If an error in a settled account is discovered and corrected before suit, and a bill be subsequently filed to surcharge and falsify, the corrected error is not a ground for a decree to surcharge and falsify. (Davis v. Spurling," 1 R. & M. 64.)

Sometimes, in decreeing a general account, the Court, induced by the particular circumstances of the case, will give special directions. Thus, on an inquiry into very remote transactions, accounts kept by a deceased party at the time, were directed to be taken as prima facie evidence, throwing on the other side the onus of impeaching them. (Chaloner v. Bradley, 1 J. & W. 65.) So in Neilson v. Cordell, 8 Ves. 146, an account having been directed against an executrix, she objected that vouchers were impounded in the Ecclesiastical Court; and that the habit of that court is not to give up any thing once impounded; and it was suggested, that the expense of having the officer to attend the Master would be considerable. Lord Eldon under these circumstances, directed that the Master should allow items upon vouchers, which it should be verified by affidavit were so impounded.

Although it is usual to direct an account against a mortgagee or an executor, without future words, yet if the person decreed to account receives any thing subsequent to the decree, it is inquirable before the Master, and he must bring such sums to account. (Bulstrode v. Bradley, 3 Atk. 582.)

It is not usual in the original decree to direct the Master to inquire what balances were from time to time in the executor's hand; it is the subject of further directions, and whenever they have been given at an earlier stage of the cause, it has always been in consequence of a special case [ *113 ] *made by the plaintiff, or of admissions in the answer that the defendant had kept balances in his hands which he had neglected to employ in the manner which his duty prescribed. (Law v. Hunter, 1 Russ. 105.) In Hockley v. Bantock, 1 Russ. 141, executors so admitting balances, the account was directed at the original hearing. The inquiry directed was concerning the balances retained by the executors, and the prices of three per cent. stock

Eng. Chan. Reps. iv. 325.

at the several times when such balances were in their hands.

A defendant having stated in his answer, that, by carrying on business on a farm, and with stock belonging to the assets of an intestate, he had made profit; but that as he had not kept any accounts, and blended the transactions of the farm with his other concerns, he could not set forth the amount of the profits: it was ordered, that in taking the account against him, annual rests should be made, and interest calculated at five per cent. upon those annual rests. (Walker v. Woodward, 1 Russ. 107.) It appears that the plaintiffs elected to waive the account of profits, whereupon it was held, that they were entitled to charge the defendant with an occupation rent of the farm, and with interest at five per cent. on the money value of the stock and to make annual rests.

In Lupton v. White, 15 Ves. 443, the defendant having mixed his property with the plaintiff's, the decree charged the defendant with the whole profit, except what he could prove to have been made by his property, and directed, that if any question as to the admission of evidence should arise before the Master in the course of the inquiry, either party should be at liberty to apply to the Court for directions on such points of evidence.

Having pointed out the distinction between a general or *open account, and a stated or settled account, [114] I now proceed to explain the manner in which a general or open account is taken in the Master's office.

There are two modes of taking accounts in the Master's offices; the one in the form of a debtor and creditor account, brought in by the accounting party, (61 N. O.); the other by examining such party upon interrogatories; and these two modes are sometimes combined in taking

one account.

On the attendance on the warrant to consider the decree, the Master usually decides which course of proceeding is most applicable to the circumstances before him. If the account is simple, and not likely to be much disputed, he directs the same to be prepared in the form of a debtor and creditor account. If it appears probable that it will be necessary to examine the party at all, the Master usually directs interrogatories to be left for his examination in the first instance. Having decided on the course of proceed

ing, the Master fixes a time within which the same is to be done.

DEBTOR AND CREDITOR ACCOUNT.

The 61 N. O. directs all parties accounting before the Master to bring in their accounts in the form of debtor and creditor. This account is prepared as an affidavit ; the body of the affidavit containing a verification of the accuracy of the schedules, in which are contained the details of the account. This affidavit is a substitution for an examination, which was the manner of accounting before the New Orders. By the alteration, interrogatories, and the certificates of allowing them are saved, [ *115] together with the *excess of expense of an examination beyond that incurred in preparing an affidavit. If the party does not bring in the account within the time fixed, he is proceeded against in the same manner as a party not putting in his examination. (See p. 127, post.)

When the account is brought in, if any of the parties are dissatisfied with it, they are at liberty to examine the accounting party upon interrogatories, as the Master shall direct. (61 N. O.) The manner of exhibiting these interrogatories will be explained in treating on that subject. In disputed accounts, this examination becomes so much of course, that I believe it is found, in such cases, that it is cheapest and best to exhibit interrogatories in the first instance.[a]

The debtor and creditor account when sworn to, is left at the Master's office, and a warrant on leaving the same is taken out, and served on the clerk in court of the opposite parties, who take copies of the same. As the debtor and creditor account, whether exhibited, annexed, or scheduled to the affidavit is sworn to, the Master cannot pro

[a] The practice, as laid down in the text, has been adopted in New York, by Chancellor Walworth; and under it, it has been held, that where a party is directed to account before a Master, he must bring in the whole account, including debits and credits, and for the whole time for which he is held accountable. Such accounts must also be accompanied by the usual affidavit of the party, as to the correctness of the items, both as to the debit and credit side of the account, according to the best of his knowledge and belief, and that he does not know of any error or omission in the account, to the prejudice of any of the other parties in the cause in which such account is exhibited. Storey v. Brown, in Chan. N. Y. July, 1833, cited 1 Hoff. Ch. Prac. 524, note; S. C. 4 Paige, 112.

ceed upon the document, as it would be improper for him to alter or vary it.

CHARGE.

The plaintiff, or the party prosecuting the order,(1) must therefore, if satisfied with the account, leave a charge, founded on the admission in the account. This charge is a transcript of so much of the affidavit of the accounting party as sets forth his receipts, and may further contain any items with which such party is sought to be charged. *A warrant on leaving, and to proceed in this [ *116 ] charge is taken out and served on the clerks in court of all the parties interested in the account. On the return of the warrant the charge is compared with the affidavit, and if found to accord with it, is allowed without further evidence. If the charge include sums not admitted to have been received by the affidavit, they must be substantiated by evidence, or by an examination of the defendant.

The items in a charge or discharge are properly the subject of inquiry in the Master's office, and should not form the subject of evidence in the cause. Upon a bill for an account, evidence entered into by the defendant to prove itens in his discharge, was not allowed to be entered as read. (Walker v. Woodward, 1 Russ. 107.) In Law v. Hunter, 1 Russ. 100, the Court refused to receive, or to order to be entered as read, evidence tending to charge an executor, admitting to have received assets, with particular sums as items of the account, and to show that he had received more than his answer admitted.

If the affidavit contain an account of the receipts of both real and personal property, two separate charges are brought in; the one including the receipt of the personal, the other of the real estate. If the defendant has set forth in a schedule to his answer to the bill, or by his examination in answer to interrogatories, his receipts and payments, a charge may be carried in against him for such

(1) For the sake of brevity, I shall call the party prosecuting the order the plaintiff, and the party accounting the defendant.