2. The stated and settled accounts are correct; they do not contain any item improperly inserted, nor do they want any item which ought to be inserted. If they do, none of such items or omissions were fraudulently made by the defendants.

3. In their transactions with the plaintiff's, except in regard to buying cotton goods, the defendants acted as principals and not as agents.

4. It is the custom of the cotton trade, which the defendants have followed, to retain discounts paid to them in buying goods for foreign principals, which the plaintiffs were, and the plaintiffs have always been aware of that custom, and have acted upon it and acquiesced in the defendants acting upon it.

5. Before each yearly account was stated and settled the plaintiffs had notice of all the matters complained of in the statement of claim.

6. The defendants insured the goods which the plaintiffs ordered to be insured, and became liable for the value thereof if lost by the perils insured against, as the plaintiffs were well aware, and became entitled to the customary premiums for such insurance, which are no more than the defendants have charged.

Reply.

The plaintiffs join issue upon the defence.

Claim by a cestui que trust against a Trustee claiming an Account and Payment.

1. Between the 1st of January, 1880, and the 30th of April, 1883, A. B. transferred many valuable securities, and paid large sums to C. D. in trust to transfer and pay the same to the plaintiff.

2. On the 1st of May, 1883, the said C. D. died.

3. The defendant is the executor of and has proved the will of C. D.

The plaintiff claims :

(1.) Accounts of all securities transferred to C. D. and moneys paid to him in trust for the plaintiff.

(2.) The transfer of such securities and the payment of such moneys.

[For accounts in partnership actions see the title "Partnership."]

Account Stated (a).

Claim upon an Account Stated.

1. From February to April, 1877, the plaintiff supplied the defendant with various quantities of groceries, and the defendant supplied the plaintiff with several tons of coal.

2. On the 28th of April, 1877, accounts were stated in writing between the plaintiff and the defendant, and upon such stating of accounts a balance of £32 was found to be owing to the plaintiff. Particulars of the said stated account, exceeding three folios in length, accompany this pleading.

The plaintiff claims £32.

Defence alleging that Account was stated under a Mistake.

1. The defendant denies that on the 28th of April, 1877, or at all, he stated an account with the plaintiff, showing a balance of £32, or any balance owing by him.

2. If an account was stated, the balance of £32 was arrived at by an accidental miscalculation of the figures upon the part

(a) The action on an account stated applies to the case where there have been various dealings between the parties, and finally a balance is struck, and so much found to be due from the one to the other. When this balance is agreed on, an account is said to be stated, and upon it an action can be founded. The account must have been stated to the creditor himself or his agent, and it is not sufficient if made to a stranger (Tucker v. Barrow, 7 B. & C. 623): but it is not necessary that the statement should be in writing: it may be by word of mouth. (Singleton v. Barrett, 2 C. & J. 368.) An account stated is not conclusive in the sense that the parties may never go into the items which make it up. (Thomas v. Hawkes, 8 M. & W. 140.) On the contrary it has been held that it may be shown that an item therein is not a good debt for want of consideration (French v. French, 2 M. & G. 644); or generally the defendant may show that the account was stated under a mistake, or that certain items were miscalculated or founded on error, provided the correction is promptly made before the other party has innocently acted upon the faith of the correctness of the account, and altered his previous position, so as to render it inequitable to call upon him to refund the money. (See Addison on Contracts, 7th edit., pp. 1072-3.)

But it is no objection to an item that has been allowed in an account stated that it arose upon a contract, which was bad for want of writing within the Statute of Frauds. (Cocking v. Ward, 1 C. B. 858.) An infant cannot state an account. (Trueman v. Hurst, 1 T. R. 40.)

"In every case in which the cause of action is a stated or settled account, the same shall be alleged with particulars; but in every case in which a statement of account is relied on by way of evidence or admission of any other cause of action which is pleaded, the same shall not be alleged in the pleading." (Order XX. r. 8.)

What an account stated is.

Need not

be in

writing.

Not con

clusive

as to the items that make it up.

of the plaintiff and the defendant. Upon a correct addition of the said accounts the defendant is not indebted to the plaintiff in any sum.

Administration of the Estates of Deceased Persons (a).
Claim by a Creditor for Administration of Real and Personal
Estate.

The plaintiff is a creditor of X. Y., deceased, of whom the defendant C. D. is executor (or administrator), and the defendant E. F. is heir-at-law (or devisee).

Administration action.

Rules of

practice as to parties.

The plaintiff claims to be paid the amount due to him, or to have the real and personal estate of the said X. Y. administered.

(a) The administration of the estates of deceased persons is specially assigned to the Chancery Division by the Judicature Acts. In former times the ecclesiastical courts had jurisdiction over the administration of the personal estates of deceased persons, and the courts of common law had jurisdiction over the administration of the real estates of deceased persons, but the jurisdiction of the Chancery Division is now exclusive.

Administration actions are usually brought by a creditor of the deceased suing on behalf of all the creditors, for which purpose their consent is unnecessary, or by a creditor claiming payment of his debt or administration of the estate, or by a legatee or one of the next-of-kin, or a devisee, or the heir. The executor or administrator is usually made defendant. If the deceased died intestate as to his real estate, and it is desired to affect the real estate in the action, the heir-at-law should be made a co-defendant. Further provisions as to parties are made by R.S.C. 1883, Order XVI. as follows:

In any case in which the right of an heir-at-law, or the next of kin, or a class shall depend upon the construction which the Court or a judge may put upon an instrument, and it shall not be known or shall be

difficult to ascertain who is or are such heir-at-law or next of kin or class, and the Court or judge shall consider that in order to save expense, Rules of or for some other reason, it will be convenient to have the questions of practice. construction determined before such heir-at-law, next of kin, or class shall have been ascertained by means of inquiry or otherwise, the Court or judge may appoint some one or more persons to represent such heir-at-law, next of kin, or class, and the judgment of the Court or judge in the presence of such persons shall be binding upon the heir-at-law, next of kin, or class so represented.

Any residuary legatee or next of kin entitled to a judgment or order for the administration of the personal estate of a deceased person, may have the same without serving the remaining residuary legatees or next of kin,

Any legatee interested in a legacy charged upon real estate, and any person interested in the proceeds of real estate directed to be sold, and who may be entitled to a judgment or order for the administration of the estate; of a deceased person, may have the same without serving any other legatee or person interested in the proceeds of the estate.

Any residuary devisee or heir entitled to the like judgment or order, may have the same without serving any co-residuary, devisee, or co-heir. Any one of the several cestuis que trust under any deed or instrument, entitled to a judgment or order for the execution of the trusts of the deed or instrument, may have the same without serving any other cestui que trust.

In all cases of actions for the prevention of waste or otherwise for the protection of property, one person may sue on behalf of himself and all persons having the same interest.

Any executor, administrator, or trustee entitled thereto may have a judgment or order against any one legatee, next of kin, or cestui que trust for the administration of the estate or the execution of the trusts.

The Court or a judge may require any person to be made a party to any action or proceeding, and may give the conduct of the action or proceeding to such person as he may think fit, and may make such order in any particular case as he may think just for placing the defendant on the record on the same footing in regard to costs as other parties having a common interest with him in the matters in question.

Wherever, in any action for the administration of the estate of a deceased person, or the execution of the trusts of any deed or instrument, or for the partition or sale of any hereditaments, a judgment or an order has been pronounced or made :—

(a) Under Order XV.

(b) Under Order XXXIII.

(c) Affecting the rights or interests of persons not parties to the action.

the Court or a judge may direct that any persons interested in the estate, or under the trust, or in the hereditaments, shall be served with notice of the judgment or order, and after such notice such persons shall be bound by the proceedings in the same manner as if they had originally been made parties, and shall be at liberty to attend the proceedings under the judgment or order. Any person so served may, within one month after such service, apply to the Court or judge to discharge, vary, or add to the judgment or order.

It shall not be necessary for any person served with notice of any judgment or order, to obtain an order for liberty to attend the proceedings under such judgment or order, but such person shall be at liberty to attend the proceedings upon entering an appearance in the central office in the same manner, and subject to the same provisions as a defendant entering an appearance.

A memorandum of the service upon any person of notice of the

Rules of practice as to parties.

Legal and

equitable assets.

judgment or order in any action under rule 40, shall be entered in the central office upon due proof, by affidavit, of such service.

Notice of a judgment or order, served pursuant to rule 40, shall be entitled in the action, and there shall be endorsed thereon a memorandum in the Form of No. 28 in Appendix G.

Notice of a judgment or order on an infant, or person of unsound mind, not so found by inquisition, shall be served in the same manner as a writ of summons in an action.

In any cause or matter to execute the trusts of a will, it shall not be necessary to make the heir-at-law a party, but the plaintiff shall be at liberty to make the heir-at-law a party where he desires to have the will established against him.

If in any cause, matter, or other proceeding it shall appear to the Court or a judge that any deceased person, who was interested in the matter in question, has no legal personal representative, the Court or judge may proceed in the absence of any person representing the estate of the deceased person, or may appoint some person to represent his estate for all the purposes of the cause, matter, or other proceeding, on such notice to such persons (if any) as the Court or judge shall think fit, either specially or generally by public advertisement; and the order so made and any order consequent thereon shall bind the estate of the deceased person in the same manner in every respect as if a duly constituted legal personal representative of the deceased had been a party to the cause, matter, or proceeding.

In any cause or matter for the administration of the estate of a deceased person, no party other than the executor or administrator shall, unless by leave of the Court or a judge, be entitled to appeal either in Court or in Chambers on the claim of any person not a party to the cause or matter against the estate of the deceased person in respect of any debt or liability. The Court or a judge may direct or give liberty to any other party to the cause or matter to appear, either in addition to or in the place of the executor or administrator, upon such terms as to costs or otherwise as they or he shall think fit.

It is an inflexible rule that the legal personal representative of the deceased is a necessary party to an action for the general administration of his estate. If the personal representative does not exist he must be constituted. But he need not be made a party where the estate has been administered by the Court, or where the legal personal representative has fully administered the estate out of court, and paid away the surplus to the persons beneficially entitled. (Hunter v. Young, 4 Ex. Div. 256). The creditor could follow the assets (ibid). The legal personal representative is also protected where he has issued and duly acted upon the statutory advertisements for creditors. 22 & 23 Vict. c.

35, s. 29.

When the Chancery Division administers the estate of a deceased person, it draws a marked distinction between legal and equitable assets. Legal assets are not those in which the interest of the executor is legal, for an equity of redemption is legal assets. The test is, could the executor as such recover the asset in question, being entitled to it by virtue of his office. If so, if the executor would be liable in a common law action by a creditor to account for the assets, it was a legal asset. If not, it was equitable. (Attorney-General v. Banning, 8 H. L. C. 259.) Where a creditor could only make the asset available for the payment of debts by coming into Chancery and getting a decree there, the asset was always held to be equitable. (Thompson v. Bennett, 6 Ch. Div. 739.) The distinction is important, for the Court of Chancery early laid hold of equitable assets to enforce an equal distribution of all the assets amongst the creditors in proportion to the amount of their debts.

In the common case of an administration suit being brought by one