pressed himself: "I am anxious to give my reasons for not acceding to Mr. Jessel's view on the question of law. I should be most unwilling to do anything which would have the appearance or effect of throwing any doubt upon the decisions in Dinwiddie v. Bailey, 6 Ves. 136, and Phillips v. Phillips, 9 Hare, 471; s. c. 22 Law J. Rep. (N. s.) Chanc. 141, that, when the receipts and payments are wholly on one side, this court will not take the account at the suit of an agent; that is to say, where it consists of receipts by A. on account of B., and payments made by A. on account of B. When the receipts and payments are wholly on one side, you cannot have an account; but where each side has been paying and receiving, having mutual confidence in each other, then the account arises. Mr. Jessel's argument would have been perfectly right if it had been the case of a simple commercial traveller, if the defendants had not entered into a contract on their part that for everything they sold upon the plaintiff's introduction, and which of course he could know nothing of, they would pay him a commission of £3 10s. per cent.; therefore, the whole thing, as I apprehend, arises, and the defendants are brought here, and the account of that commission must be taken." The decree was therefore to the effect stated above, and the defendants appealed against the whole of it.

In the course of the argument the following authorities were referred to:

The South-Eastern Railway Company v. Martin, 2 Ph. 758; s. c. 1 Hall & Tw. 69; 18 Law J. Rep. (N. s.) Chanc. 103; Phillips v. Phillips, 9 Hare, 471; s. c. 22 Law J. Rep. (N. s.) Chanc. 141; Padwick v. Stanley, 9 Hare, 627; s. c. 22 Law J. Rep. (N. s.) Chanc. 184; Foley v. Hill, 2 H. L. Cas. 28; Padwick v. Hurst, 18 Beav. 575; s. c. 23 Law J. Rep. (N. S.) Chanc. 657.

Mr. Willcock having been heard in reply,

LORD JUSTICE KNIGHT BRUCE said, that it appeared to him that the present bill stated a case for an action at law, but not such a case as would entitle the plaintiff to file a bill in equity. It did not fall within those principles as to account and agency upon which, when there was jurisdiction both in courts of law and of equity, that joint jurisdiction was based. He was unable, with great deference to the learned Vice Chancellor, to come to the same conclusion as that at which his Honour had arrived, for it appeared to him to be solely a case of legal right; and, considering

the established rules of this court, there was neither account nor agency within the meaning of those rules. The bill might have been demurred to, and it must be now dismissed.

LORD JUSTICE TURNER added, that he should have hesitated to pronounce an opinion at variance with that of Vice Chancellor Wood, immediately and without further deliberation, if the subject had not been recently under his consideration; but as he had lately given full consideration to the subject, he thought that no benefit would arise from deferring his judgment in the present case. It had not been contended by the plaintiff that there would be any possible right in him to file a bill for an account, unless on the ground that it was the duty of the defendants to keep an account of their receipts, so far at least as concerned that portion of their business in respect of which the plaintiff was entitled to a commission, — namely, on the orders received by the defendants from friends and connexions of the plaintiff. But, in the first place, the bill contained no allegation whatever that there was any contract by the defendants, or that it was any part of their duty, to keep any such account; in the next place, it was not every contract which of necessity created such a trust as would justify this court in interfering; and in the third place, there appeared in this to be nothing more than a simple contract by the defendants to pay the plaintiff a commission upon the orders to be obtained from his friends and connexions; and if the plaintiff could maintain a bill under such circumstances, it was impossible to say where the jurisdiction of this court in similar cases would For instance, a banker not only received money paid in by his customers, but he also applied money which he received from other sources on their accounts; and upon the contention of the plaintiff, if this bill were right, every customer of every banker might file a bill to have the accounts taken between himself and the banker. This was quite inconsistent with the principles laid down in the case referred to in the argument before the House of Lords in Foley v. Hill. It was clear that in the present case there were no mutual accounts between the parties; and although it would not be denied that complexity of accounts had in some cases been held to justify a suit in this court, there was no such allegation of complexity in the bill in this suit, nor was there any allegation that there were mutual accounts. With the greatest respect for his Honour, he was of opinion that the bill must be

cease.

dismissed, and with costs; but there would be no costs of the appeal. The bill will be dismissed with costs, without prejudice to any action at law; no costs of the appeal, and the deposit to be returned to the defendants.

ENGLISH NOTES.

It should be noted that in this case the Lord Justices reversed the judgment of V. C. WOOD, and that the decision as reported in 1 Hemming & Miller, p. 123, thus stands reversed.

Hemming v. Pugh (1863), 4 Giff. 456, was a case which came up on demurrer before V. C. STUART, on Nov. 4th, 1863,—a few days before the decision of the Lord Justices in the principal case (which was on Nov. 9th). The bill claimed an account, and alleged that the defendant had received moneys on behalf of the plaintiff, of which the amounts and particulars were unknown to the plaintiff. The Vice Chancellor, notwithstanding the decision of V. C. WooD in Smith v. Leveaux being cited, allowed the demurrer. The mere averment of receipt of money by an agent, although accompanied by a bald statement that without the evidence of the defendant and the production of the books the plaintiff was unable to obtain an account, was not enough. It did not appear why the plaintiff could not obtain that evidence. The Vice Chancellor, however, stated that his decision was not merely on the ground that the receipts and payments were wholly on one side. "There are many cases," he said, "where the receipts and payments are wholly on one side, in which, however, this court has exercised its jurisdiction. In the case of a steward or land-agent, the receipts and payments are almost necessarily on one side, — that is, no mutual payments and receipts. Yet that is a case in which this court from the most ancient times (and more recently during the times of Lord RoSSLYN, Lord THURLOW, and Lord ELDON) has exercised this jurisdiction. That jurisdiction still remains; and wherever an agency partakes of a fiduciary character, this court has jurisdiction, and will direct an account, although the receipts and payments are all on one side, and there are no mutual payments between the parties."

Most of the earlier authorities will be found cited in the arguments before the House of Lords in Foley v. Hill (1848), 2 H. L. C. 28. There a bill in Chancery had been brought by a customer against a banker for an account, the transactions being not complicated, but consisting of a few items and a calculation of interest. The House of Lords, affirming the decision of Lord LYNDHURST, the former Lord Chancellor, held that the bill was rightly dismissed. The LORD CHAN

CELLOR (Lord COTTENHAM), in advising the House, drew the distinction. between such a case and the case of an agent dealing with what is the property of the principal. "As between principal and factor," he says, "there is no question whatever that that description of case which alone has been referred to in the argument in support of the jurisdiction has always been held to be within the jurisdiction of a Court of Equity, because the party partakes of the character of a trustee. So it is with regard to an agent dealing with any property: he obtains no interest himself in the subject-matter beyond his remuneration; he is dealing throughout for another, and though he is not a trustee according to the strict technical meaning of the word, he is quasi trustee for that particular transaction for which he is engaged; and, therefore, in these cases the Courts of Equity have assumed jurisdiction."

Dinwiddie v. Bailey (1801), 6 Ves. 136, referred to by the Vice Chancellor in the principal case (p. 421, supra), was a bill by an insurance broker to make good a claim in the nature of a set-off against the principal. The demurrer was allowed. It was stated by the counsel in support of the bill, after the cause had stood over for the purpose of searching precedents, that there were numerous cases of accounts sought by a principal against a factor; and this is apparently confirmed by Lord COTTENHAM's judgment in Foley v. Hill. The other case, Phillips v. Phillips (1852), 9 Hare, 471; 22 L. J. Ch. 141, referred to by V. C. WOOD (p. 421, supra), was a simple case of debtor and creditor account. It was alleged that amongst the moneys received were moneys arising from the sale of certain railway shares belonging to the plaintiff and sold by them on his account. TURNER, V. C., allowed a demurrer for want of equity.

AMERICAN NOTES.

The principal case is cited, with Padwick v. Stanley, 9 Hare, 627, by Mr. Pomeroy (3 Equity Jurisprudence, p. 473), who observes: "While the rules are thus settled in favour of a principal, it does not follow that the reverse is true, and that an agent may come into equity for an accounting against his principal, since generally there is no trust or confidence reposed in the latter, and no duty on his part to account."

But where an agent's salary depends upon the profits made by his employer, an accounting may be had. Buel v. Selz, 5 Illinois Appeals, 116; Bentley v. Harris, 10 Rhode Island, 434; 14 Am. Rep. 695, citing Harrington v. Churchward, 8 W. R. 302; 6 J. N. s. 576; see also Garr v. Redman, 6 California, 574; Hallett v. Cumston, 110 Massachusetts, 32.

SECTION II.-What may be recovered on a Stated Account.

WHERE several items of claim are brought into account on either side, and, being set one against another, a balance is struck and agreed to be due, although the transaction is merely verbal and some of the items have been merely equitable and unliquidated claims, the balance may be

sued for as money due on account stated. The essence of the matter is that in consideration of the discharge of items on either side, the balance is agreed to be due.

Laycock v. Pickles.

33 L. J., Q. B. 43; (s. c. 4 Best and Smith, 497).

Upon an appeal against a judgment of the Judge of the County Court of Yorkshire, holden at Leeds, the following case was stated by the Judge:

The action was brought to recover £22, stated in the plaintiff's particulars of demand annexed to the summons to be due to him. from the defendant, "for work and labour done and performed, and materials found and provided by the plaintiff for the use and on account of the defendants, at their request, and also upon an account stated, full particulars whereof have been sent and delivered to the defendants."

The case came on for trial at Leeds, on the 2d day of February, 1863, and was adjourned from time to time to the 1st of April following, when it was fully heard before Thomas Horncastle Marshall, Esquire, Judge.

On the trial the plaintiff's attorney stated that he should proceed on the account stated only, as the plaintiff's cause of action, and that he should not proceed on or prove the other causes of action alleged in the particulars of demand.