Usual Directions, ante. And see Decrees respecting Personal Assets, post.

Rests.

In Robinson v. Cumming, 2 Atk. 410. it is said by Lord Hardwicke, that ordinarily, in taking an account of the rents and profits of real estates, the Court has directed annual rests, but not in taking an account of personal estate.

But in the case of all parties accountable, rests have been inserted. See Raphael v. Boehm, 11 Ves. 110.

See Decrees respecting Mortgages, post. Decrees for Specific Performance, post. Decrees respecting Executors and Trustees, post. Rests are sometimes directed generally, sometimes annually, sometimes half-yearly. See Decrees, above referred to.

In general, rests are made in order to see whether interest is to be charged or not. See Raphael v. Boehm, supra. Hall v. Hallett, 1 Cox, 138. And decree in Tebbs v. Carpenter, 1 Mad. 293.

Where interest is directed to be computed with rests, there was, formerly, a difference in the practice of the Masters, as to the mode of computing it; some at the time of the rest, carrying the interest to a separate column, and computing subsequent interest on the principal (and thus charging the defendant with simple interest only), and others at the time of the rest, adding the interest to the principal, and computing interest on the aggregate sum (and thus charging the defendant with compound interest). See Raphael v. Boehm, 11 Ves. 97. 103. But in that case, it was held that the object of such a direction is to charge compound interest. And see Stackpoole v. Stackpoole, 4 Dow. 209. Tebbs v. Carpenter, 1 Mad. 300. Crackelt v. Bethune, 1 J. & W., 586. Walker v. Woodward, 1 Russ. 111.

Special Directions.

It seems that formerly, special directions were usual in decrees for account. See Lord Bacon's Orders, Beames, 23. But of late, it has been held, that the Court will not, in the first instance, make any declaration which would have the effect of taking the account in part. Hornby v. Hunter, 1 Russ. 89. But see Smith v. Wilkinson, Appendix, (1). Wane v. Praed, No III. post. Talwin v. Stoker, Decrees respecting Partners, post.

Nor will it permit evidence to be read, or entered as read, as to such items. Walker v. Woodward, 1 Russ. 110. Law v. Hunter,

1 Russ. 102. And see Admission of Evidence before the Master, Usual Directions, ante. Except for the purpose of founding inquiries upon it. See Hornby v. Hunter, supra.

But in directing an account, the Court frequently directs it to be taken with the admission of documents or testimonies not strictly evidence. See Lupton v. White, 15 Ves. 443.

An account may be directed, regard being had to particular circumstances. Hardinge v. Glyn, Appendix, (2).

Liberty to attend Master.

A defendant who has no interest in the result of accounts, will not be allowed to attend the Master in taking them. Pearce v. Crutchfield, 16 Ves. 48.

A defendant made a party to a suit for carrying into effect the trusts of a will, only in respect of an annuity charged on the real estate by the will (there being no provision in the decree for her attendance before the Master), was not allowed the costs of past attendances; nor to attend in future, unless at her own expense. Tharpe v. Tharpe, 3 Mer. 510.

Further Directions.

After a decree for an account, the bill cannot be dismissed, except on a rehearing or appeal. Lashley v. Hogg, 11 Ves. 602.

Where it appears, by the Master's report, that the balance is due from the plaintiff, he will be decreed to pay it, although there is no offer in the bill, or direction in the original decree for that purpose. Bodkin v. Clancy, 1 Ba. and Be. 216; and see Domina Stowel v. Cole, 2 Vern. 297.; and Payment of Balance, Note (3), ante.

APPENDIX (1).

Decree for Account, with special Direction.

And in taking the said accounts against the defendant Jacob Wilkinson, the said Master is to charge the defendant Jacob Wilkinson with the sum of 8,000l., borrowed by him from the testor's estate, to enable him to purchase the tithes of Bray, in the pleadings mentioned, together with interest from the time of the purchase, at the rate reserved in the mortgage of the tithes in the pleadings mentioned. Smith v. Wilkinson, L. C., 9th of February, 1798. Reg. Lib. B. 1797, fol. 363. For minutes of same decree, see

2 Newl. Pract. 335.

APPENDIX (2).

Decree for Account, regard being had to particular circumstances. In taking of which accounts, the said Master is to have regard to the said agreement, by the said order of the 1st day of March, 1738, made an order of this Court, relating to the personal estate of the said testator Nicholas Hardinge, which is hereby established, and to be taken as such in the said accounts. Hardinge v. Glyn, M. R, 7th June, 1739. Reg. Lib. A. 1738, fol. 438. S. C. 1 Atk. 469.

No. II.

DIRECTION FOR ALLOWING STATED ACCOUNT.

And if, in taking the said accounts, the said Master shall find any account stated, he is not to ravel into the same. Birkhead v. Manaton, L. C. 25th January, 1748. Reg. Lib. A. 1748. fol. 308. S. C. (Wortley v. Birkhead) 2 Ves. 571. 3 Atk. 809.

NOTE.

Where a stated account is insisted upon by the answer, the above direction is frequently inserted in the decree. See Dawson v. Dawson, 1 West, 171. note. S. C. 1 Atk. 1. 3 Swan. 627.

Beak v. Beak,

But in such case liberty will be given to surcharge and falsify. Kinsman v. Barker, 14 Ves. 579.; and see Champernowne v. Scott, 4 Mad. 209.

No. III.

DECREE FOR ACCOUNT.

Liberty to surcharge and falsify stated Accounts.

[A bond had been given for the balance of the stated account.] His Lordship doth think fit and so order and decree, that the account stated the 24th day of May, 1744, between the plaintiff and the defendant do stand, with liberty to either side to falsify or surcharge the same (1). And it is hereby referred to Mr. H. one, &c. to take a general account of all

dealings and transactions between the said plaintiff and defendant, from the foot of the said account; and that the said Master do likewise take an account of what is due for principal and interest on the bond in question, and that the same be brought into the general account (2); and if, in taking the said account between the parties, the Master shall find the said defendant debtor to the plaintiff on the said general account, at any particular period of time, and after that time the plaintiff does not become debtor to the defendant in the said general account, then from such period of time, that the said Master do apply what shall be coming due from the defendant to the plaintiff, first, to pay the interest on the said bond, and then to sink the principal (3). And it is ordered, that what shall appear to be due from either party to the other on the balance of the said account, be paid by such party from whom such balance shall be found due to the other (4). And it is further ordered, that an injunction be awarded to stay the said defendant's proceedings at law on the said bond against the plaintiff, until after the said Master shall have made his report; and for the better clearing of the said accounts before directed, all parties are to produce &c. [See Usual Directions, No. II. ante,] And his Lordship doth reserve the consideration of costs (5), and of all further directions, until after the said Master shall have made his report, and any of the parties are to be at liberty to apply &c. [See Usual Directions, No. XIX, ante.] Wane v. Praed, L. C. 11th Feb. 1747. Reg. Lib. B. 1746, fol. 233.

NOTES.

(1) Where the parties are at liberty to surcharge and falsify, they are not merely confined to errors in fact, but may take advantage likewise of errors in law. Roberts v. Kriffen, 2 Atk. 112.

The onus probandi is on the party having that liberty. If any of the parties 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 by proof on his side. Pit v. Cholmondeley, 2 Ves. 565.

(2) See Special Directions, No. I. Note (6), ante. (3) See Rests, No. I. Note (6), ante.

(4) See Payment of Balance, No. I. Note (3), ante. (5) See Costs, No. I. Note (6), ante.

No. IV.

DECREE SETTING ASIDE STATED ACCOUNTS, AND DIRECTING GENERAL ACCOUNT.

[Inter alia] His Lordship declared that the three stated accounts, dated &c. ought to be opened and set aside, and doth order and decree the same accordingly; and it is hereby referred to Mr. S., one, &c. to take a general account of all dealings and transactions between the plaintiffs, or either of them, and the defendant; and also of the value of any timber, &c., in the taking of which account, the said Master is to make unto all parties all just allowances (1); and for the better taking the said account, all parties are to be examined, &c. [See Usual Directions, No. II. ante.] And it is ordered and decreed, that what shall be found due upon the balance of the said account from either party to the other, be paid by the party from whom the same shall be found to be due to the others of them (2); and it is ordered and decreed that the said defendant do pay to the plaintiff's their costs of so much of the cause as relates to the setting aside the said stated accounts, to be taxed by the said Master. And his Lordship doth reserve the consideration of the rest of the costs (3) of this suit until after the said Master shall have made his report, and the said parties are to be at liberty to apply, as, &c. [See Usual Directions, No. XIX. ante.] Howarth v. Powell, L. C. 4th July, 1743. Reg. Lib. A. 1742, fol. 660.

For like decree. See Equity Draftsman, 656.

E