the case may be), a brown horse (or, insert whatever the amount or thing given was) was delivered by the defendant to and accepted by the plaintiff in discharge of the alleged cause of action.

2. Defence of same plea to action for Not Delivering Goods in accordance with Charter-party.

On the 5th April, 1882, an agreement between the plaintiff and the defendant, whereby it was agreed between the plaintiff

(a) Accord and satisfaction means that something is given or done by the defendant to or for the plaintiff, and accepted by the latter on a mutual agreement that it shall be a discharge of a cause of action. The agreement is the accord, and the thing given or done is the satisfac tion. An oral agreement will be sufficient. (Lavery v. Turley, 30 L. J. Ex. 49.) Accord without satisfaction or satisfaction without accord is no defence, as the two must exist. Being always ready and willing to execute the satisfaction is not a defence, as it must be performed. (Collingbourne v. Mantell, 5 M. & W. 289.) In the case of an ascertained debt a smaller sum is not by itself, and without any further consideration, any satisfaction of a larger amount, but if there be some additional benefit or consideration it will be binding. But in other cases the value of the thing done or given in satisfaction or accord cannot be inquired into, as they are accepted as equivalent by agreement. (See Cumber v. Wane, and notes thereunder, 1 Sm. L. C. 7th ed. p. 341.) In Sibtree v. Tripp (15 M. & W. 23) it was held that an acceptance of a negotiable instrument for a smaller sum than the debt may be a good accord and satisfaction; and in Goddard v. O'Brien, 9 Q. B. Div. 37, it was decided that a cheque for £100, could, in law, be an accord for a debt of £125. The learned judges (Grove, J., and Huddleston, B.) expressed their dissatisfaction with the rigorous doctrine of Cumber v. Wane. Payment of a smaller sum may be a satisfaction of a larger ascertained debt, where there is a valid agreement to that effect, as where it is agreed to be paid before the whole debt is due, or where it is paid as a composition for the debt, under an arrangement with creditors, or where it is paid by a third party. If the satisfaction is accepted after breach, it is a good defence. (Blake's case, Coke's Rep. vol. 3, p. 342.)

What constitutes accord and satisfac tion.

and the defendant that the defendant should deliver the cargo of the "Mary" at the Surrey Commercial Docks instead of at Hull as per charter-party of 1st March, 1882, was accepted in discharge of the alleged cause of action.

Assigned to Chancery Division.

Accounts (a).

Claim by Executors of Principal against Agent for an Account. 1. The plaintiffs are executors of A., deceased.

2. From the year 1875 till his death A. employed the defendant as his confidential agent in the management of a large building estate at X.

The acceptance of a valid agreement in discharge, such as an agreement for a compromise, is a good defence unless it appear that the erecution or performance of the agreement and not the agreement itself was the satisfaction intended. (Hall v. Flockton, 20 L. J. Q. B. 208.) An agreement to refer to arbitration is not an accord and satisfaction. (Elliot v. R. Exch. Ass. Co., L. R. 2 Ex. 237.)

Accord and satisfaction made by a stranger on behalf of the defendant and accepted by the plaintiff, is a good defence. (Jones v. Broadhurst, 9 C. B. 173. See at 193-4.) If one of several joint creditors accept a satisfaction it is binding on the others. (Smith v. Lovell, 20 L. J. C. P. 37; Wallace v. Kelsall, 7 M. & W. 264.)

(a) By sect. 34 of the Judicature Act. 1873, the taking of partnership and other accounts is assigned to the Chancery Division. There was an old common law action of account which lay where one merchant charging another merchant as a receiver claimed an account against him, and also where there was a privity in deed or in law between the parties, as where the defendant was the bailiff or guardian of the plaintiff. The common law action went into disuse owing to the superior machinery possessed by the Court of Chancery for the taking of accounts, and for other reasons. Accounts may now be taken, under the Judicature Acts, in the Queen's Bench Division, where they are usually referred to an official referee. Although the jurisdiction is thus concurrent, actions for an account, or involving the prolonged examination of accounts, are usually brought in the Chancery Division, and it is more convenient to bring them in that division. Even before the Judicature Acts the aid of equity was invoked where the accounts were of great interest, complexity, or there were many circumstances of complication attending the case. In those days the test seems to have been whether the matter was too complicated to be tried at nisi prius. (O'Connor v. Spaight, 1 Sch. & Lef. 305.) The common cases in which actions have been brought for accounts in equity are those in which there have been mutual accounts between the parties, i.e., where each of the parties has received, and also paid in the moneys on the account of the other (Phillips v. Phillips, 9 Hare, 471), and those in which the parties stand in the position of principal and agent to one another. An agent has not the same right to an account against his principal; the principle of the action is that the plaintiffs can only learn from the discovery of the defendants how they have acted in the execution of their agency. (Mackenzie v. Johnston, 4 Mad. 373.) Claims for an account by cestui que

3. The defendant, as such agent, received large sums of money for the said A., for which he refuses to account.

The plaintiffs claim :—

(1.) Accounts of all sums received and paid by the defendant as such agent.

(2.) Payment of the amount found due.

trust against trustee, and by patentee against infringer, come within the same class. In a sense a trustee is the agent of the cestui que trust, and a patentee may adopt the acts of an infringer, as those of an agent, and take the profits as money had and received to his use. But a patentee so claiming cannot have damages also. If he elect to have the profits, he may prove for them upon the bankruptcy of the infringer. (Watson v. Holliday, 20 Ch. Div. 780: cf. Docker v. Somes, 2 My. & Ke. 664.)

A common defence to an action for an account is a stated and settled Defence of account, i.e., that the parties have in writing gone through the account, stated and and agreed that the balance due on one side shall be taken at so much. settled This is ordinarily a good defence, but in certain cases the Court will open account. the account, or give the plaintiff liberty to surcharge and falsify, i.e., liberty to insert items wrongly omitted by the defendant, and for which the plaintiff should have credit, and to strike out items wrongly inserted by the defendant, and for which he (the defendant) should not have credit. A stronger case is required to open a stated and settled account than is required merely to obtain liberty to surcharge and falsify. Thus, where an account is impeached if a single important error is established, the Court will not, except in the case of fraud, order the whole account to be opened, but will make a decree that the plaintiff may be at liberty to surcharge and falsify. Therefore, in a partnership action where an error of £950 was established in an account long settled, it was held that in taking the accounts the plaintiff should be at liberty to surcharge and falsify, and that such liberty should not be confined to errors appearing from the books. (Gething v. Keighley, 9 Ch. Div. 547.) The law upon the subject has been recently considered by Jessel, M. R., in Williamson v. Barbour, 9 Ch. Div. 529), who thus laid down the practice of the Court:

"The practice of the Court of Chancery, which of course is the practice of the High Court of Justice, is to consider whether the accounts shall be opened, or whether there shall be liberty to surcharge and falsify; that is, if the Court is of opinion that errors of sufficient number and sufficient magnitude are shown, it is not, as I understand it, necessary that the errors shown should amount to fraud. If they are sufficient in number and importance, whether they are errors caused by mistake, or errors caused by fraud, the Court has a right to open the accounts. I have known cases, for instance, Clarke v. Tipping (9 Beav. 284), which we are familiar with, in which the Court abstained purposely from using the term 'fraud,' although I am afraid no other term could be properly applied. That is not necessary. But there is this to be considered, that when the account is between persons in a fiduciary relation and the person who occupies the position of accounting partythat is the trustee or agent-is the defendant, it is easier to open the account than it is in cases where persons do not occupy that positionthat is to say, that a less amount of error will justify the Court in opening the account."

And again, "Where you show a single fraudulent entry in the case of

When opened or liberty to surcharge and falsify given.

Claim barred by laches

or acqui

escence.

Claim by Patentee for an Account of Profits and an Injunction against an Infringer.

The defendant has infringed the plaintiff's patent, No. 14,084, for the term of 14 years, from the 21st May, 1880, for certain improvements in the manufacture of iron and steel, whereof the plaintiff was the first inventor.

Particulars of breaches are delivered herewith.

The plaintiff claims an injunction to restrain the defendant from further infringement, and an account of the profits made by him through such infringement, and payment thereof.

Claim by Principals against Agents for an Account, notwithstanding a Stated and Settled Account.

1. From the year 1853 until the 25th of December, 1883, the plaintiffs employed the defendants for reward to act as the plaintiffs' agents in buying and selling cotton goods, and in exporting and shipping and insuring the same, and the defendants so acted.

2. The accounts between the plaintiffs and the defendants were stated and settled in the ordinary way of business once in every year.

3. The plaintiffs have only just discovered, and the fact is, that the said accounts contain many false items and omissions which the defendants fraudulently made in them. In particular, the defendants during the whole period of their agency

persons occupying the position of principal and agent, or trustee and cestui que trust, the Court has actually opened an account extending over a greater number of years and closed for a much longer period than the account I have before me. I mean in the case of Allfrey v. Allfrey, before Lord Cottenham, 1 Mac. & G. 87. We, therefore, have this as a sort of guide without laying down any general rule, because every case must depend on its own circumstances, that where the accounts have been shown to be erroneous to a considerable extent, both in amount and in the number of items, or where fiduciary relations exist and a less considerable number of errors are shown, or where the fiduciary relation exists and one or more fraudulent omissions or insertions in the account are shown there, the Court opens the account, and does not merely surcharge and falsify." But the plaintiff's claim may be barred by his laches or by acquiescence. In cases between cestui que trust and trustee. however, the Court is slow to admit this plea. (Matthews v. Wilson, 4 Ves. 125.) So where the parties are client and solicitor. (Watson v. Rodwell, 11 Ch. Div. 150; 48 L. J. Ch. 209; 39 L. T. 614; 27 W. R. 265.)

made false charges in their invoices, debiting the plaintiffs with large sums which the defendants never paid, or which they had received back from other persons to whom they purported to have paid them under the name of discounts, and they have also made other charges which in their position as agents for the plaintiffs upon the terms agreed upon they were not entitled to make, particularly for profits which they have made in the purchase on behalf of the plaintiffs of grey and white shirtings, on bleaching the white goods, and in packing the goods which they shipped for the plaintiffs; and although the plaintiffs generally sent their bills to the defendants to be discounted, the defendants often discounted such bills for themselves and used the money, and when bills were entered by the defendants in the accounts as having been discounted on a certain day, they were often discounted on a later day and at a lower rate.

4. The plaintiffs from time to time instructed the defendants to insure the goods in the best offices, yet often the defendants did not do so, but have sent the goods at their own risk, at the same time charging the plaintiffs with insurance premiums higher than would have been charged in the best offices.

Particulars of many of the items improperly inserted, and of many of the items improperly omitted from the said accounts, were delivered to the defendants before the commencement of this action.

The plaintiffs claim :—

(1.) That an account may be taken of all sums received and paid by the defendants as agents of the plaintiffs, and of the said profits and overcharges, and of all transactions between the plaintiffs and the defendants.

(2.) Payment of the amount found due.

The defendants say that:

Defence.

1. They deny that they were ever employed by the plaintiffs to act as the plaintiffs' agents in selling cotton goods or in exporting or shipping or insuring the same, or that they ever so acted.