Philips v. Belden

| New York Court of Chancery | Feb 23, 1833

The Vice-Chancellor.

Under the circumstances detailed in this case, it is insisted, on the part of the complainants, that even supposing there was no actual or intentional fraud practiced by the agent in obtaining the settlements, yet they ought not to stand and are still to be deemed open accounts; and, especially, that where such a confidential relationship exists as is proved in the present case, the policy of the law is against considering accounts as closed and settled, unless the party setting up the defence proves affirmatively the correctness of them. As a general rule, where an account is made up and rendered in due form, he to whom it is rendered is bound to examine the same or to procure some one to examine it for him; and if he admits the account to be correct, it becomes a stated account and is binding upon both parties,—the balance being the debt, which may be sued for and recovered at law upon the basis of an insimul computassent. So, if instead of an express admission of the correctness of the account, the party receiving it keeps the same by him, an(j maices no objection within a reasonable time, he will be considered, from his silence, as acquiescing, and be equally bound by it as a stated account. And whenever the balance appearing to be due by such stated account is paid, it then becomes a settled account. This is the result of the agreement and acquiescence of the parties in the correctness of the accounts, and of their concurrent acts—the one in paying, and the other in receiving the balance. If either party attempts to impeach the settlement and to open the accounts for re-examination, either wholly or in part—and which can only be done on the grounds of fraud, mistake or error—the burthen of proof rests upon the party impeaching, and he must prove the fraud or point out the error or mistake On which he relies. These are the plain and familiar rules which govern in ordinary cases. Are the circumstances here presented sufficient to justify a departure from them?

The aversion of Mrs. Ogilvie and Captain Philips to examine accounts, and their reluctance to look into them minutely for the purpose of satisfying themselves, instead of relying altogether upon the “ blind confidence,” as it has been termed, in their agent, is not to be imputable to the defendant —nor was it caused by his means. It arose from their own inert dispositions and the habits they had formed. It was not Mr. Belden’s fault if they did not choose to examine for themselves or employ others sufficiently skilled in accounts to attend to examinations and settlements on their behalf. They should have done one or other of "these things', unless they were perfectly satisfied to forego the privilege. If they preferred the latter, they ought not now to complain. The agent rendered his accounts periodically, exhibited his books and vouchers, invited an investigation preparatory to a settlement, and afforded time and opportunity for it at the party’s own house and where they could have had any assistance they might have desired. This was all which the accounting party had to do. His conduct, on these occasions, as to the manner of proposing and effecting -the settlements, for adght that appears, was upright, fair and honorable. They were willing to admit his accounts as presented; and they settled with him accordingly.

But their incapacity to understand long and complicated accounts, is urged as a reason against the settlements. Here, again, was a fault of their own. It is not one which can be attributable in any way to the agent. They were not persons labouring under such weakness of intellect or imbecility of mind, as to disqualify them from managing their affairs in general, and to render it improper for other persons to deal or make contracts with them:—far from it: they merely were not accountants. In this consisted their deficiency—a deficiency which they should have remedied by application to the subject of accounts of supplied by calling in the skill of others. Their omission or neglect in this particular ought not to be the foundation of an objection on their part to the settlements which they thought proper to make, without taking pains to investigate for themselves, (if such was the fact) or employ others to do it for them. Even as respects Mrs. Ogilvie in the two last years of her life, when old age had brought on bodily infirmity, her mind remained sound, and she could have availed herself of the assistance of friends to examine accounts presented by her agent. And, besides, her son, Captain Philips, residing in the same house, must have known when the agent was there with his accounts for settlement; and if, during this period, his mother stood in need of assistance, he was at hand, to assist or procure aid for her.- The objection on this ground, therefore, fails.

The next objection is founded upon the circumstance of unlimited confidence, and the relation which the nature of the agency created between them. The policy of the law is strongly against permitting certain classes of transactions to stand, which have been entered into, where a confidential relationship exists • between the parties, without allowing an inquiry. It looks upon them with a jealous eye: because there is room to suppose the party, claiming the benefit of the transaction, may have availed himselt of knowledge acquired from his situation as agent or trustee, or exerted an improper influence which such situation has given him, or, possibly taken some advantage of the confidence he enjoyed, and turned it to his own account: —in other words, that the parties have not dealt upon equal terms. In such cases, this court will, in general, interfere and institute an inquiry into the transactions, without direct evidence of fraud or imposition, and will put the parties back to where they stood in reference to the subject matter of the agreement before they entered upon it.

But, the present is not a case falling within this'rule of policy i and none of the numerous cases to which I have been referred extend the doctrine to- a settled account between principal and agent, where there has1 been an actual accounting, even although there may have been confidence and trust.

In the recent case of Jenkins v. Gould, 3. Russ. Rep. 385., a settlement, in relation to the defendant’s accounts, as the plaintiff’s solicitor, receiver and manager of his estates, was set aside. But there, the defendant had never delivered any bill of his costs as solicitor; and had never rendered or prepared any account of his receipts and payments as receiver and manager. Also, while standing in this confidential situation, he had obtained from the plaintiff a mortgage of his estates as security for the balance of his accounts. And without ascertaining, by any examination or even production of his accounts or vouchers, what the balance really was, (the defendant insisting that a large balance was due to him,) he obtained from an agent of the plaintiff’s, who was empowered to settle, and compromise with him, an agreement by which the plaintiff" should pay him a gross sum, in full, and this was to be a final settlement between them. The Court held, considering their relative situation of solicitor and client, agent and principal, and on account of . the duty of the former to keep regular accounts and render them in due form, that he should not avail himself of his own neglect or omission of duty; and decreed the accounts to be investigated. The present case is widely different; because accounts were rendered. The same marked distinction will be found to exist in regard to other cases. Thus in Middle-ditch v. Sharland, 5. Ves. 87, a receipt in full was set aside, and an account directed. The decision went, upon this ground, amongst others, that the defendant did not, at the time of obtaining the receipt or at any other time, deliver any regular account in writing to his employers. The Master of the Rolls observed: “ The nature of the defendant’s employment, which was that of a land steward, imposed upon him the duty of keeping accounts; and the circumstances which he disclosed by his answer were not sufficient to excuse him, as steward, for the monstrous negligence in keeping no account whatever. Therefore, for the sake of the precedent, he was bound to order an account of all the dealings and transactions; and decreed the receipt should not serve any further than as evidence of so much money paid. So, in Salkeld v. Vernon, 1. Eden, 65, a bill was filed by a residuary legatee against executors, for an account. A release was set up, but the Lord Keeper put it aside and decreed an account, mainly upon the ground that the release had been obtained without an account from the executors of the personal estate. He deemed it a necessary ingredient to support such-a release that an account should be rendered. On the other hand, Davies v. Spurling, 1. Tam. R. 199, & S. C. 1 Russ. & M. 64, is an authority to show, if an authority were necessary# that where accounts have been rendered by an Executor, Agent or Trustee, and, after being examined, the same are admitted to be correct and an acknowledgment to this effect is signed and the balance paid, such a settlement will not be disturbed, nor the accounts ordered to be retaken under the direction of the Court, unless for fraud or surprise in the settlement clearly proved or so far as errors in the accounts can be pointed out.

There is a numerous class of cases in the books, where, it is true, the Court of Chancery has gone pretty far in opening accounts, upon the ground of settlements having been made during the existence of a confidential relationship. These are between Attorney and Client, or Solicitor and Client. Still, in all the cases of this description to which I have been referred, or which have fallen under my observation, in addition to professional confidence, as a ground for interference, there has existed special circumstances, showing fraud and imposition practised upon the client, or an undue use made of the power and influence which the relation of Attorney and Client has given the former over the latter, and of which he had taken an unconseientious advantage. The cases of Wharton v. May, 5. Ves. 27. and Vaughan v. Lloyd, before Lord Thurlow, there cited, Purcell v. Mc Namara, 14. Ves. 91., Lewis v. Morgan, 5. Price, 42. S. C. 4, Dow, 29. and 3, Young and Jervis 230, and Jenkins v. Gould, ut supra, are all instances of this sort. Even if the Court should be called upon, in a case between Solicitor and Client, to set aside a release and to open accounts, in the absence of any thing like fraud, I apprehend it would be for reasons of public policy and upon principles peculiar to such cases; and which do not apply as between principal and agent, manager and steward disconnected with professional calling or the character of a legal adviser: 5 Price 43 n. & 55. On this topic it is unnecessary to enlarge.

I am convinced there is no good reason why accounts, which have been settled in a case of a stewardship or agency like the present, should be opened and the agent or his representatives be subjected to a new accounting under the direction of the Court, merely because, at the time of the settlements, the agent possessed the unbounded confidence of his principal. On this ground the Court cannot interfere. If the accounts are to be opened at all, it must be for other reasons and upon more substantial grounds.

This brings me to the consideration of the alleged frauds, overcharges, mistakes and errors, and the effect which these, when ascertained, are to have upon the settlements.

As respects fraud in the settlement of Mrs. Ogilvie’s accounts, none, indeed, appears. An objection is taken to the manner of stating some of the accounts; because the credit side contains only a sum in gross, without a detail of items. It is also made a point that the Agent did not keep and furnish rent rolls and other proper statements of property and income; and has not been sufficiently distinct in his accounts as to what belonged to Mrs. Ogilvie and what to Captain Philips. All these matters, even as shown, are far from being evidence of fraud; nor does any loss or injury appear to have resulted to the principals, from such keeping and rendering of accounts. If they were not so full and explicit as to be satisfactory to Mrs. Ogilvie, she should have objected at the time. After what has taken place, these circumstances are not enough to warrant the opening of them.

Then, as to what-are alleged to be overcharges or errors,, and which are pointed out as grounds for granting leave to the complainants to surcharge and falsify. These consist of two things, namely, charges of five per cent. Commissions on the sales of land for Mrs. Ogilvie, in addition to the stipulated commission of seven and a half per cent., and a charge of interest on three hundred pounds paid to Thomas Belden for a period of three years.

The commissions objected to are found in two accounts, one settled in the year seventeen hundred and ninety-nine, and the other in eighteen hundred and one. They are charged on certain sums, as being the amount of sales of lands, and are entirely distinct from the other commission of seven and a half per cent, on the amount of collections of Rents and notes. They formed very conspicuous items in the accounts, so as to have been easily perceived even upon the slightest examination, and are, likewise, so plainly expressed as to be understood by the most ordinary capacity. Mrs. Ogilvie has signed these accounts as settled; and upon payment of the balances which were in her favour, she gave receipts in full. In addition to the evidence thus afforded of the correctness of the charges, the defendant is called upon, by the bill, to say, whether his accounts were not overcharged in this respect, and he denies they are, and avers that the five per cent, upon the sale of lands, in addition to the seven and a half for collecting of monies, was authorized and Mrs. Ogilvie knew of it, and he insists upon the same being just, and of its having been allowed by her knowingly. This is evidence of an agreement on her part to allow the five per cent, as well as the seven and a half per cent, commission. It stands uncontradicted; and I should not be justified, in the face of the agreement and of her actual allowance of both commissions distinctly presented in the accounts, in permitting the complainants now to falsify the charges.

Then, as respects the interest money of twenty-one pounds a year paid on the debt due to Thomas Belden. This is charged as having' been paid for three years in succession. There is no allegation in the bill, drawing in question the correctness of the accounts in this particular; and, of course, there is nothing in the answer relating particularly to the subject. On the hearing, it was, for the first time, suggested to be an error or a charge in the accounts which the defendant ought not to have made, because, as the Counsel said, jt appear^ fr0m the accounts themselves, that the defendant had balances in his hands sufficient to have paid the debt and ought to have paid it, and stopped the interest; or, if he permitted the interest to accrue against Mrs. Ogilvie, he should have allowed her interest on the balances in his hands. I am not satisfied that, in point of fact, monies belonging to Mrs. Ogilvie remained in the defendant’s hands any length of time. He was in the habit of paying her over sums from time to time as the money came in and whenever convenient opportunities offered to send it to her, obtaining her receipts for such payment on account, and then, at reasonable intervals, making the settlements before spoken of and paying her the balance,—the accounts being made up of his collections at different periods on the one hand, and his disbursements and payments on the other. In running accounts of this sort, it may well be, and doubtless often was the case, that he had but small amounts remaining in his hands for any length of time. Hence, it may be unjust to charge him with interest or to impute negligence to him in not paying off the debt due to Thomas Belden. Besides, it is said, and I think truly, the defendant was not bound, without the express direction or authority of Mrs. Ogilvie, to apply the funds in his hands to the payment of her debts, and he is not to be charged with a breach of duty in this respect until the complainants shew she gave hint such authority or direction. And as he paid the interest and charged the same in his accounts, and which she has allowed and settled as being correct, the presumption is that his authority extended no further and that it suited her convenience to let the principal remain a few years unpaid. For these reasons, I cannot but think this last ground, upon which it is urged that the complainants ought to be let in to surcharge and falsify, is likewise not sustained, •

Upon the whole, in regard to the accounts with Mrs. Ogilvie, even if the grounds assumed were such as could be deemed sufficient, under other circumstances, to let the complainants in to a partial scrutiny of the accounts or to require the defendant to submit to an entirely new accounting, as if no settlements had ever taken place, still, under present circumstances, the Court ought not and cannot with any degree of propriety interfere.

It is a wise and salutary provision of the law, which permits time to draw a veil over the transactions of men; and equity, acting upon this benign principle, gives great effect to the lapse of time, and discourages claims not promptly made, especially where there has been no personal disability or other impediment in the way of asserting them. Here has been none-; and yet, from the time of Mrs. Ogilvie’s death (when all her rights devolved upon her son), a period of twenty years or thereabouts has been suffered to elapse, without objection to any part of the accounts and without the least intimation or assertion of claim arising upon them. If this long acquiescence is not an absolute bar, it is, at least, a circumstance to require at this day much clearer proof for opening and re-investigating the accounts than is at present furnished: Hampson on Trustees; 99.; Ellison v. Moffat, 1 John. Ch. Rep. 46.; Rayner v. Pearsall, 3. Ib. 578.

My conclusion on this part of the case is that Mrs. Ogilvie’s accounts must stand as settled accounts; and that the complainants have not shown enough to entitle them to surcharge and falsify, especially at this late day.

I now proceed to the account with Captain Philips. For the reasons already given against opening the settlements made with Mrs. Ogilvie, on the ground of the confidential relationship and the slight examination of the accounts when presented, it is manifest the settlements with him, as acknowledged under his hand, should not be set aside. The same principles apply and the reasons are still stronger against him why the accounts should not be opened upon these grounds. Nor do I think there is any thing which can possibly be construed into fraud on the part of Mr. Belden, in the mode of keeping and rendering his accounts or in the manner of settling them with Captain Philips, so as to require the interference of the Court to the full extent of subjecting Mr. Belden or his representativesto an entirely new accounting. I shall, therefore, leave these accounts likewise to stand and to be treated as settled accounts between Captain Philips and Mr. Belden.

But there are sufficient reasons why the complainants should have liberty to surcharge and falsify them to a certain extent. Although the scope and object of the bill is for a general account as if no settlement had ever taken place between the parties, yet, it is so framed that, upon the defendant’s setting up and proving stated accounts so as to protect himself from a general accounting, the complainants may nevertheless be entitled to an inquiry into the accounts as stated and settled for the purpose of shewing errors and omissions. The Bill charges a variety of errors and omistions; and upon which the parties are at issue. The state of the pleadings, therefore, admits of the introduction of proofs on these points. In such a case, and where enough appears to induce a belief of errors having occurred and that the accounts require to be corrected, it is the duty of the Court to permit it to be done, by giving leave to surcharge and falsify: Brownell v. Brownell, 2 Bro. C. C. 62; Taylor v. Haylin, Ib. 310. and S. C. 1, Cox, 435; Johnson v. Curtis, 3 Bro. C. C. 266; Kinsman v. Barker, 14 Ves. 579.; and see 9 Vesey, 266.

Among the alleged overcharges and errors in the accounts between Mr. Belden and Captain Philips, there is one of compound interest upon certain notes given by the latter to the former. Such an error, I am inclined to think, will be found to exist; and, if so, it should be corrected: unless allowing it to stand can be justified by the rule laid down in The State of Connecticut v. Jackson, 1 John. Ch. Rep. 13, and Van Benschooten v. Lawson, 6. Ib. 313. This forms a proper subject of inquiry for a Master. So, in regard to the alleged omission in the accounts of the money arising from Swift’s Bond and Mortgage. Mr. Belden appears to have been in a state of uncertainty as to whether he had ever ere dited this money in his accounts or paid it over to Captain Philips. This circumstance affords another reason for permitting the accounts to be examined; and, to be corrected by the Master, if he shall find the money has not been credited or paid to Captain Philips. Mr. Belden has, moreover, in some of the Schedules annexed to his answer, pointed out errors and omissions which he has himself discovered, and which must, necessarily, require investigation in a Master’s Office; and he also claims to charge a certain commission, omitted in his accounts, which he insists he is now entitled „ , . to demand.

I mention these alleged omissions, errors and overcharges, in order to show the propriety of permitting an investigation, so far as they are specially pointed out in the pleadings. Either party may have liberty to surcharge and falsify; but in so doing, they must confine themselves to such matters as they have expressly and specially alleged to be overcharges, errors or omissions. I shall not permit them to go further. It is desirable to limit, as much as possible, the subjects of inquiry in the Master’s Office. In order to understand clearly the application of the terms “ surcharge” and “ falsify,” and the difference between this course and taking an account generally, it is well to observe that where liberty is given to surcharge and falsify, the Court takes the account to be a stated and settled account and establishes it as such. If either party can show an omission, for which an entry of debit or credit ought to' be made, such party surcharges, that is, adds to the account, and if any thing should be inserted which is wrong, he is at liberty to show it, and this is a falsification. The onus probandi is always on the party making the surcharge or falsification; and if he fails to prove it, the account must stand as correct. It is presumed to be correct, after having been once settled, until the contrary appears. Here lies the difference between this and a general accounting; for, in the latter, the party producing the account must shew the items to be correct: 1 Mad. Chan. Prac. 83.

There are some points about the accounts to come before the Master which call for the opinion of the Court; and which it is right should be so settled by way of special directions on the reference. The facts of this case are as fully before the Court as they are ever likely to be; and a full opinion now may be the means of preventing exceptions and further discussion. The first point is in relation to the Hopkins’ farm. The accounts of Mr. Belden with Captain Philips contain an item of debit, under the date of the eighteenth day of February one thousand eight hundred and fifteen of four hundred and seventy eight pounds, as sundries paid to Joseph Hopkins and secured by his bond and mortgage to Captain Philips. This sum, equal to eleven hundred and ninety pye ¿0jjarSj ¡s composed of five hundred dollars' advanced by Mr. Belden on Captain Philips’ account to one Joseph Hopkins and of six hundred and ninety-five dollars of debt due by Hopkins to the defendant in his own right. These sums were included in and formed part of the consideration, of a bond and mortgage executed by Hopkins to Captain Philips through the agency of Mr. Belden for four thousand four hundred and sixty-five dollars on the eighteenth day of February one thousand eight hundred and, fifteen upon a farm of one hundred and eighty acres at that time conveyed by Captain Philips to Hopkins, and on which he had resided as tenant for many years. The other parts of the consideration for the bond and mortgage were made up of the whole purchase money of the farm at the appraisal of ten dollars per acre in the year one thousand eight- hundred and- ten with interest upon it from that period and other indebtedness which Hopkins was under to Captain Philips for rent of the farm. In order to reimburse Mr. Belden in part for the five hundred dollars advanced and to pay the debt owing to him by Hopkins (which was included in the bond and mortgage) Mr. Belden appropriated to his own usé a bond of one William Calkins to Captain Philips for three hundred and seventy-one pounds and eighteen shillings, which was in his hands as agent and which he accordingly gave credit for in his account of the same date with the charge of four hundred and seventy-eight pounds. The complainants ask leave to falsify as to the whole of this sum, upon the ground that the advance of five hundred dollars to Hopkins was improvidently made and the giving of a deed to Hopkins and taking back a mortgage was, under the circumstances, a mere contrivance of the agent’s to obtain payment of his debt, which Hopkins, who was an old man and insolvent, was unable to pay, and that it was making Captain Philips assume a debt without adequate security—the original .purchase money of the farm with interest and the .prior indebtedness to Captain Philips being as much or more than the farm was worth—and that the consequence has been a loss to Captain Philips of several thousand dollars. And the complainants counsel say, he, Captain Philips, was drawn into and assented to the arrange-ti-eni from a blind credulity and misplaced confidence, against which the agent was bound to protect him s and, consequent-!y, the loss of this money should be borne by the agent. I have carefully looked into this transaction, as set out in the bill and answer, and have examined all the testimony brought to bear upon it, and after the most deliberate consideration, I am of opinion Captain Philips is bound by the assent which he appears to have freely given to the sale of the farm to /Hopkins and to the advance of the five hundred dollars towards paying his debts, as an inducement to him to purchase. The testimony of Mrs. Philips and George Belden go far to show that Captain Philips himself agreed with Hopkins to make the advance; and I am inclined to think this is the truth of the case, whatever Hopkins may say to the contrary. His extreme age and loss of memory easily accounts for the discrepancy. But I am not convinced and the evidence certainly fails to prove that Captain Philips ever agreed to assume or take upon himself the absolute payment of Hopkins’ debt to Mr. Belden. He may have known and assented to its being included in the mortgage: but there could have been no' sufficient reason or motive for his assuming, at all events, the payment of this debt. If he did do this, it was a gratuitous act; and the valué of the farm was certainly not a security equal to the mortgage debt and the interest of one year, which it had to run. Under such circumstances, the defendant should have proved an express agreement, founded upon a consideration of assuming and running the risk of payment: because it is, in effect, an undertaking to pay the debt of another. The mere including it in the mortgage security is not sufficient, unless the security proved available to .the full extent of satisfying this and the other monies which it was intended to cover. The mortgage has failed of its object in this respect. Although Captain Philips has accepted a release of the equity of redemption or has, by other means, obtained possession of the farm, still it was not in satisfaction of the whole mortgage debt. In point of value, it was insufficient to satisfy his own debt. While the estate of Captain Philips sustains a considerable loss in this respect, it is not equitable or just to throw also upon him the loss of Mr. Belden’s debt. It has been suggested in argument, that Captain Philips, by his subsequent acts, sanctioned and ratified the whole transaction. I do not find, in any of his subsequent acts, the clear and decisive evidence which I think the case calls for, of his having agreed to assume the debt in question and run the risk of its being paid out of the mortgage property or by Hopkins personally. For these reasons, I shall give the complainants leave to falsify the charge of four hundred and seventy-eight pounds to the extent of six hundred and ninety-five dollars, but not as to the five hundred dollars residue; and it will be the Master’s duty to correct the accounts accordingly.

The next and only remaining point in controversy which it is necessary for me to notice, is the Belden farm. This is the farm on which Mr. Belden resided as tenant for several years and then purchased at an appraised value. The professed object of the bill is to set aside the sale and to have a reconveyance of the property with a full account of rents and profits, with an enquiry as to the consideration money paid for the same. But the complainant’s counsel have waived the claim to a re-conveyance and insist upon the right of inquiring into the consideration of the sale, since it was a sale by the land ovpier to his steward or agent, alleging the price to have been far below the actual value, and* therefore, the agent is bound to account for a full and fair price for the land, unless he can show he has already done so; and the burthen of proof, it is contended, rests upon the agent. The sale took place in the year one thousand eight hundred and four. The farm consisted of three hundred and sixteen acres and the price was eighteen dollars and fifty cents per acre, amounting to five thousand eight hundred and forty-six dollars. A number of" witnesses on both sides have been examined as to the value of the lands at that time; and they differ in their estimates. Some think the price, just mentioned, its full value; while others estimate it to have been worth twenty dollars and some twenty-five dollars an acre. The preponderance of the testimony is not much beyond eighteen dollars and fifty cents an acre. Even admitting the question of value to be an open one at this time, on account of its being a transaction between a steward and his employer (see, Lord Selsey v. Rhoades, 2. S. & S. 41.), yet I should not be warranted, at this time of day and under the circumstances, in directing Mr. Belden to be charged with an increased value of the land. There is one circumstance which I think shows very conclusively that all parties must have been perfectly satisfied with the price and the fairness of the transaction and that too after abundant time for reflection had been allowed. About eight years had elapsed when it was discovered that Mrs. Gouverneur was entitled to an estate in remainder in fee in a portion of the land comprised in the farm; and on being applied to by Mr. Belden, she and her husband Mr. Gouverneur (both of whom are here as complainants) executed to the defendant a deed of release and confirmation, without requiring any additional consideration to be paid. This could only have proceeded from a conviction of the fairness of the purchase from Captain Philips and the adequacy of the price agreed upon for the whole title and estate; and their opportunities of ascertaining and determining this point were certainly as good in the year one thousand eight hundred and twelve (when such release was given) as in one thousand eight hundred and twenty-nine, when the contrary was, for the first time, suggested. I am of opinion the price fixed upon and allowed for the purchase of this farm ought not to be disturbed. As respects the payment of the purchase money, a considerable portion of it appears to have been paid by turning-in notes, accounts and balances which were claimed to be due from Captain Philips to Mr. Belden. So far as these have entered into or grown out of the general accounts between the parties, any errors or overcharges will be reached and rectified by the leave to falsify, provided they are embraced within any of the objections to the accounts pointed out by the bill. Nothing further is necessary to be observed on this subject.

A decree must be entered adjudging the accounts to be settled accounts, and allowing them so to stand. But, in regard to the accounts with Captain Philips, leave is to be given to the parties respectively to surcharge and falsify to the extent and upon the principles already stated, with special directions upon the points I have noticed and endeavoured to settle.