count is in some measure dependent on the circumstance.: of the case. The mere delivery of an account, without evidence of contemporaneous or subsequent conduct, will not prove it to be a stated account; but an acceptance, implied from circumstances, will suffice [e. g., retaining it an unreasonable time without objection]. It is also material to the equity for an account that it be claimed within the proper time. Where the account is sought under a legal title, or under an equitable title of like nature with a legal one, that limit of time will be adopted in equity which is prescribed by the statute of limitations at law. When the bar of the statute is inapplicable, there may nevertheless be a bar in equity, originating in long acquiescence by the party, and in the consequent presumption that he has either been satisfied in his demand, or that he intended to relinquish it.* [228] 4. It is generally held that an account rendered, not objected to in a reasonable time, becomes an account stated. Brown v. Van Dyke, 4 Halst. Ch. 795; Thompson v. Fisher, 13 Pa. St. 313. parties themselves, and to compel production of books and documents. It is not liable to interruption by controversies on particular items, but is carried on continuously to its close. The master reports the final result to the court. The report may be excepted to on any points which are thought objectionable, and all such points are simultaneously re-examined by the court, and either at once determined, or, if necessary, referred back to him for view. [226] As soon as the report is finally settled and confirmed, a decree is made for payment of the ultimate balance. If the interests of other persons are entangled in the account, the court may require that they be made parties to the suit, or may direct, if necessary, the institution of cross suits; and thus, having all their interests before it, may so modify a single decree, as effectually to embrace and arrange them all. If the account is one which might be readily investigated by a jury, [in a proceeding at law] it seems that in that case no equity will arise.1 If there has been an account stated between the parties, it may be pleaded as a bar to both discovery and relief, or may be set up by answer as a bar to relief.2 The account, however, may be opened on the ground of fraud, or if important errors are specified and proved; but a general allegation that it is erroneous will not suffice. In some cases where a stated account is impeached, the court will reopen the whole and direct it to be taken de novo. [227] In others, when it is faulty in a less degree, it will allow it to stand, with liberty to surcharge and falsify. This leaves it in full force as a stated account except so far as it can be impugned by the opposing party. If he shows the omission of a credit, that is a surcharge; if he shows the insertion of an improper charge, that is a falsification. The question of what will constitute a stated ac 3 9. See, generally, as to the practice in the master's office, Hoffman's Masters in Chancery; Barbour's Chancery Practice, and Daniels' Chancery Pleading & Practice. 1. Monk v. Harper, 3 Edw. Ch. 109. 2. Weed v. Small, 7 Paige, 573. 3. See Seton on Decrees, 48; note, Adams' Equity (Am. Ed.), *227. count is in some measure dependent on the circumstance.: of the case. The mere delivery of an account, without evidence of contemporaneous or subsequent conduct, will not prove it to be a stated account; but an acceptance, implied from circumstances, will suffice [e. g., retaining it an unreasonable time without objection]. It is also material to the equity for an account that it be claimed within the proper time. Where the account is sought under a legal title, or under an equitable title of like nature with a legal one, that limit of time will be adopted in equity which is prescribed by the statute of limitations at law. When the bar of the statute is inapplicable, there may nevertheless be a bar in equity, originating in long acquiescence by the party, and in the consequent presumption that he has either been satisfied in his demand. or that he intended to relinquish it.* [228] 4. It is generally held that an account rendered, not objected to in a reasonable time, becomes an account stated. Brown v. Van Dyke, 4 Halst. Ch. 795; Thompson v. Fisher, 13 Pa. St. 313. CHAPTER II. [229] OF PARTITION.- SUBTRACTION OF TITHES. ASCERTAINMENT OF BOUNDARY.-PAYMENT OF RENTS. The equity for the severance of co-tenancy and other analogous relief originates in the fact that the co-tenants have a rightful unity of possession, and that its severance cannot be adequately effected at law. It is most frequently applied in effecting partition between co-owners, but its principle extends to suits for assignment of dower and for relief against subtraction or non-payment of tithes.1 The inconvenience of the remedy at law by writ of partition originated a concurrent jurisdiction in equity, the exercise of which may be demanded as matter of right, notwithstanding the difficulties by which a division may be embarrassed, or the mischief which it may entail on the property. [230] Parties having limited interests, as, for example, tenants for life or years, may, if they please, have a partition in equity, as well as at law, in respect of their own interests only. But if a complete partition be desired, all parties interested may be brought before the court, and all estates, whether in possession or expectancy, including those of infants and of persons not in esse, may be bound by the decree. The defendant's titles need not be proved by the plaintiff, but may be ascertained by a reference to the master; and the partition itself, being effectuated by mutual conveyances, may be made in a more convenient form. [231] Its general principle is of course the same as that of a partition at law, viz., a division of the estate; but if the estate is not susceptible of an exact division, an allotment may be made in unequal shares, with compensation for the inequality by creation of a rent or charge. A partition, however, must be bona fide made, and the pecuniary charge confined to corrections of inequality. There cannot, under the name of such correction, be substituted a mere 1. In England and in most of the states partition is now regulated by statute. Consult the local statutes. Eaton's Equity, 607. sale to one co-tenant; and, therefore, if the estate consists of a single house, the entire house must be divided, however inconvenient such division may be. The mode in which a partition is effected in equity is, that after the interests of all parties have been ascertained, either by evidence in the cause, or by the master's report, a commission is issued to persons nominated by the parties, or if necessary by the court, directing them to enter on and survey the estate, to make a fair partition thereof, to allot their respective shares to the several parties, and to make a return of their having done so to the court. The commissioners in making their division are guided by the principles already explained. After making it, they allot to the several parties their respective shares; and in doing this they ought to look to their respective circumstances, and to assign to each that part of the property which will best accommodate him. The return of the commissioners, when made, is confirmed by the court. The confirmation, however, does not, like the judgment on a writ of partition, operate on the actual ownership of the land, so as to divest the parties of their undivided shares, and reinvest them with corresponding estates in their respective allotments, but it requires to be perfected by mutual conveyances; and the next step, therefore, after confirmation of the return, is a decree that the plaintiffs and defendants do respectively convey to each other their respective shares, and deliver up the deeds relating thereto, and that in the meantime the allotted portions shall respectively be held in severalty. [232] If any of the co-owners have settled or mortgaged their shares, directions will be given for framing the conveyance so that all parties shall have the same interests in the divided shares, which they before had in the undivided shares. If the infancy of the parties or other circumstances prevent the immediate execution of conveyances, the decree can only extend to make partition, give possession, and order enjoyment accordingly until effectual conveyances can be made. If the defect arises from infancy, the infant must |