Copyright
William Wait.

A treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 1) online

. (page 31 of 93)
Online LibraryWilliam WaitA treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 1) → online text (page 31 of 93)
Font size
QR-code for this ebook


intervene, courts of equity will interfere to grant redress ; as, in
the case of an apprentice-fee of a fixed sum being given, and
the master afterward becomes bankrupt, equity will interfere
upon the ground of the failure of the contract from accident, and
decree an apportionment of the premium so given. Hale v.
TFe5&, 2 Bro. Cli. 78. So, in some other cases, an apportionment
of the apprentice-fee has been decreed. See 1 Story's Eq. Juris.,
§ 473. But, on the other hand, where a premium has been paid
and the apprenticeship has been dissolved by request of the
friends of the apprentice, but without any default in the master,
and without an'y agreement for a return of any part of the pre-
mium, there a court of equity will not interfere. No equity
attaches itself to such a transaction, nor does the contract
import any return. Id., § 474; Hirst v. Tolson, 13 Jurist, 596;
Hale V. Webb, 2 Bro. Ch. 78.

Apportionment of rent is not unfamiliar to the administration
of the law. In equity it is apportionable generally, or rather,
each beneficiary is required to contribute according to the benefit
he has shared in the use of the premises. See Hall v. Stertenson,
13 Abb. N. S. (N. Y.) 196, 202. In respect to their appor-
tionment in certain cases, the same rule is not applicable
to rents service and rents charge. If one having a rent ser-
vice purchase a part of the land out of which it issues, it
extinguishes the rent pro rata, and leaves it good for the bal-
ance. So if he release a part of his rent, the residue is not dis-
charged. 2 Washb. Real Prop. 17; Ingersoll v. Sergeant, 1
Whart. (Penn.) 337; Bac. Abr., Rent M. But if it be a rent charge,
and the holder of the rent purchases any part of the premises,
the rent is wholly extinct. So if he releases any part of the land
which is charged, the balance is wholly discharged, and the rent
will not be apportioned. 2 Washb. Real Prop. 17. But there
is nothing in the nature of a rent charge which absolutely pre-
vents its being apportioned ; for it is well settled that where the
division of the land charged, into several portions, is by the
operation of law, an apportionment will take place. Thus, if a
part of the lands charged with a rent descend to the grantee of
the rent, it being the act of the law and not of the grantee, the
rent will not thereby be wholly extinguished, but only .pro
rata. Id. 17, 18 ; 1 Story's Eq. Juris., § 475, a ; Man Rensselaer
V. Ghadwick, 22 N. Y. (8 Smith) 32 ; S. C, 24 Barb. 333 ; Cruger
V. McLaury, 41 N. Y. (2 Hand) 219 ; S. C, 51 Barb. 642.



182' ACCOUNTING.

Where tenants in common of land subject to a rent charge, upon
a partition, interchange conveyances of their respective parcels,
subject, in terms, to the claims of the lessor, an apportionment
of the rent is effected if the lessor concurs in the arrangement.
The release by the lessor, in such a case, to one of the tenants
of the parcel partitioned to him, only extinguishes the rent as to
the parcel so released. The other parcel remains liable to its due
proportion. Van Rensselaer v. Ghadwick^ 22 N. Y. (8 Smith)
32.

In every lease of land, the lessor is so far bound, by implica-
tion, for the title and enjoyment by the lessee, that his right to
the rent is dependent thereon ; and if the tenant is evicted from
the demised premises, the rent is thereby suspended. Poston v.
Jones, 2 Ired. Bq. (N. C.) 350. So if the lessor be evicted of a
part of the land demised, by a stranger on title paramount, it
operates as a suspension of the rent pro tanto, and the rent is
apportioned and payable only in respect of the residue. lb.

Upon the death of a tenant for life, in the middle of a quarter,
his representative is not entitled to an apportionment of the rent.
Gee V. Gee, 2 Dev. & Bat. Eq. (N. C.) 103. As to the apportion-
ment of rent where the premises out of vi^hich the rent issued are
destroyed by fire or otherwise, see 3 Kent's Com. 466, and notes;
Cutler V. Potts, 2 Hay. (N. C.) 26 ; S. C, id. 60.

A rent service incident to a reversion will not be lost by a
grant of part of the reversion, but will be apportioned. And the
right of apportionment attaches the instant the sale is made. Lin-
ton V. Hart, 25 Penn. St. 193; Meed v. Ward, 22 id. 144. A rent
payable in produce and services is apportionable. Van Rensse-
laer V. Gifford, 24 Barb. 349.

§ 7. Contribution. In order the more effectually to do justice
to all the parties, courts of equity frequently assume jurisdic-
tion over matters of account in cases of contribution. And it is
held that the jurisdiction in equity, in such cases, is not affected,
because a remedy now exists at common law. Hickman v. Mc-
Curdy,! Z. J. Marsh. (Ky^) 559; Yeile v. Hoag, 24 Vt. 46; Way-
land V. Tucker, 4 Gratt. (Va.) 268; CoucTi v. Terry, 12 Ala. 225.
The doctrine of contribution is said to rest on the principle that
when the parties stand in equali jure, the law requires equality
which is equity, and one of them shall not be obliged to bear
the burden in ease of the rest. It is founded, not on contract,
but on the principle that equality of burden as to common right
is equity. And the obligation to contribute arises from the



ACCOUNTING. 183

nature of the relation between the parties. Campbell v. Mesier^
4 Johns. Ch. 334 ; S. C, 6 id. 21; Aspinwall v. SaccM, 57 N. Y.
(12 Sick.) 331, 335; White v. Banks, 2\ Ala. 705; Russell v.
Failer, 1 Ohio St. (N. S.) 327. If the liability arise ex delicto
there is no right to contribution, for there is no equity between
wrong-doers. Adams' Eq. 268; Bartle v. JVutt, 4 Pet. (U.S.) 184;
Feck V. Mlis, 2 Johns. Ch. 131 ; Miller v. Fenton, 11 Paige, 18.
Though this rule is held to be applicable only where the parties,
who claim contribution, have engaged together in doing, know-
ingly or wantonly, a wrong. Moore v. Appleton, 26 Ala. 633 ;
Armstrong County v. Clarion County, QQ Penn. St. 218; S. C, 5
Am. R. 368; Aches on v. Miller, 2 Ohio (N. S.), 203.

The subject of contribution may be illustrated by the case,
where different parcels of land are included in the same mort-
gage, and are afterward sold to different purchasers, each holding
in fee and severalty the parcel sold to himself. Each purchaser
is bound to contribute to the discharge of the common burden or
charge, in proportion to the value which his parcel bears to the
whole included in the mortgage. Stevens v. Cooper, 1 Johns. Ch.
425 ; Cheeseborough v. Millard, id. 409, 415 ; Taylor v. Porter,
7 Mass. 355. To ascertain the relative values of each is, how-
ever, a matter attended with much difficulty ; and without a re-
sort to a court of equity in such a case, the most serious embar-
rassments may arise in fixing the proportion of each purchaser,
and in making it conclusive upon all others. See 1 Story's Eq.
Juris., §§ 484, 485 ; Hyde v. Tracy, 2 Day (Conn.), 422; Cutter v.
Emery, 37 N. H. 567 ; Ransom v. Keyes, 9 Cow. 128.

Another illustration of the equity for contribution is found in
the doctrine of general anerage. This, in the sense of the mari-
time law, means a general contribution, that is to be made by
all parties in interest, toward a loss or expense, which is volun-
tarily sustained or incurred for the benefit of all. The principle
upon which this contribution is founded, is held not to be the
result of contract, but has its origin in the plain dictates of
natural law. Abb. on Shipp. 342; 1 Story's Eq. Juris., § 490 ;
Stirling v. Forrester, 3 Bligh, 590, 596 ; Louismlle Ins. Co. v.
Bland, 9 Dana (Ky.), 147 ; Nimic v. Holmes, 25 Penn. St. 371.

The circumstances under which this equity arises are where a
ship and cargo are in imminent peril, and a portion is intention-
ally sacrificed for the security of the rest ; as, where goods are
thrown overboard, or a portion of the ship' s rigging cut away,
to lighten and save the ship, or the ship itself is intentionally



184 ACCOUNTING.

stranded, to save her cargo from a tempest or an enemy, or a
part of the cargo is delivered up by way of ransom, or is sold
for the necessity of the ship. In all these cases the impending
danger is common to all, and the means by which it is averted
ought to be a common burden. If, therefore, the ship and tlie
residue of the cargo are preserved by the sacrifice, the parties
interested in the ship, her freight, and the merchandise on board,
must make good ratable shares of the loss, proportioned to the
value which their own goods and the goods sacrificed would
have borne, after deducting freight, had they safely reached the
port of discharge. If, on the contrary, the sacrifice is not inten-
tionally made, but is damage incurred by violence or stress of
weather, or if it prove unavailing, or be made not to save the
cargo, but to save the lives and liberty of the crew, the principle
of contribution does not apply, and the loss must remain where
it originally falls. Adams' Eq. 271 ; Sims v. Gurney^ 4 Binn.
(Penn.) 524 ; Williams v. Suffolk Ins. Co., 3 Sumn. 51 3 ; Crockett
V. Dodge., 3 Fairf. (Me.) 190. The rates of contribution are gen-
erally settled by arbitration, but the parties cannot be compelled
to refer, and may have recourse to an action at law or a suit in
equity. Adams' Eq. 271 ; Sturgess v. Cary, 2 Curtis (C. C), 59 ;
Gillett V. Ellis, 11 111. 579. A court of equity affords a safe, con-
venient, and expeditious remedy ; and it is accordingly the cus-
tomary mode of remedy in all cases, where a controversy arises,
and a court of equity exists in the place, capable of administer-
ing the remedy. 1 Story's Eq. Juris., § 491 ; Merithew v. Samp-
son, 4 Allen, 192 ; Hallett v. Bousefield, 18 Ves. 190, 196.

The beneficial effects of equity jurisdiction over matters of
account may also be seen in cases of contribution between sure-
ties. Such contribution may, indeed, be enforced at law, as well
as in equity. See Harris v. Ferguson, 2 Bailey, 397 ; Norton v.
Coons, 3 Denio, 130 ; Rindge v. Baker, 57 N. Y. (12 Sick.) 209,
215; S. C, 15 Am. R. 475. Bat the jurisdiction now assumed in
courts of law, in no way affects that originally and intrinsically
belonging to equity, and there are many cases in which the relief
is more complete and effectual in equity than it can be at law.
See Edsell v. Briggs, 20 Mich. 429 ; 1 Story's Eq. Juris., § 496.

The right of contribution arises between sureties where one
has been called on to make good the principal' s default, and has
paid more than his share of the entire liability. Adams' Eq. 269 ;
Pinkston v. Taliaferro, 9 Ala. 547 ; Mitchell v. Sprout, 5 J. J.
Marsh. (Ky.) 264. And the right exists notwithstanding the sev-



ACCOUNTING. 185

eral sureties sign without any communication with, each other.
Norton v. Coons, 6 N. Y. (2 Seld.) 33 ; S. C, 3 Denio, 130 ; Chaf-
fee V. Jones, 19 Pick. 260, 264. But he can only call for contribu-
tion when he has paid more than his proportion of the debt, and
then for no more than the excess. Rutherford v. Branch BanJc,
14 Ala. 92 ; L^jtle v. Pope, 11 B. Monr. (Ky.) 309 ; Fletcher v.
Grover, 11 N. H. 368, 373-4. See Taylor v. Morrison, 26 Ala. 728;
llsley V. Jeweit, 2 Mete. 168. So, a surety, who has paid the
whole debt, must show the insolvency of the principal, to entitle
him to contribution against his co-surety. Allen v. Wood, 3
Ired. Eq. (N. C.) 386 ; Daniel v. Ballard, 2 Dana (Ky.), 296 ;
Fear son v. Duckham, 3 Litt. (Ky.) 385. Or must show that he
has used due diligence, without effect, to obtain reimbursement.
McCormack v. Ohannon, 3 Munf. (Ya.) 484. And a surety who
has neglected to interpose a legal defense, as, for instance, the
statute of limitations, is not entitled to claim contribution from
the rest. Fordham v. Wallis, 17 Jurist, 228. But where the
estate of a deceased surety of a principal debtor was discharged
from liability to the creditor, through his negligence, by opera-
tion of the statute of limitations, and a co-surety afterward paid
the debt, it was held that the estate was liable to contribute to
such co-surety, notwithstanding it was released from direct lia-
bility to the creditor. Cainp v. Bostwick, 20 Ohio St. 337 ; S. C,
5 Am. R. 669. The doctrine of contribution has its origin in the
relation of co-sureties or other joint promisors in the same de-
gree of obligation. It is not founded upon the contract of surety-
ship, but is an equity which springs up at the time the relation
of co-sureties is. entered into, and ripens into a cause of action
where one surety pays more than his proportion of the debt.
From this relation the common law implies a promise to con-
tribute in case of unequal payments by co-sureties. lb. Fussell
V. Failor, 1 Ohio St. 327. But equity resorts to no such fiction.
It equalizes burdens and recognizes and enforces the reasonable
expectations of co-sureties, because it is just and right in good
morals, and not because of any supposed promise between them.
1 Lead. Cas. Eq. 105; Aspinwall v. Sacchi, 57 N. Y. (12 Sick.)
331, 336. This equity having once arisen between co-sureties,
this reasonable expectation that each will bear his share of the
burden is, as it were, a vested right in each, and remains for his
protection until he is released from all his liability in excess of
his ratable share of the burden. Neither the creditor, the prin-
cipal, the statute of limitations, nor the death of a party, can

Vol. I.— 24



186 ACCOUNTING.

take it away. Camp v. BostwicTc, 20 Ohio St. 337 ; S. C, 5 Am.
R. 669 ; Howe v. Ward, 4 Greenl. (Me.) 195 ; Baehelder v. Flslce,
17 Mass. 464 ; Boardman v. Paige, 11 N. H. 431 ; Aspinwall y.
SaccM, 57 N. Y. (12 Sick.) 337, 338.

In some of tlie States of the Union, courts of law now follow
the rule adopted in courts of equity in apportioning the share of
an insolvent surety upon those who remain solvent. See Hen-
derson V. MeDuffee, 5 N. H. 38 ; Mills v. Hyde, 19 Vt. 69 ; Allien
V. Peay, 5 Strobh. (S. C.) 15 ; Jones v. Blanton, 6 Ired. Eq. (N.
C.) 116 ; 1 Story's Eq. Juris., § 496, a. That equity, where the prin-
cipal is insolvent, will restrain a surety from fraudulently strip-
ping himself of his property, so as to throw the burden of the
debt on his co-surety. See Bowen v. Hoskins, 45 Miss. 183.

There are many other cases of contribution, in which courts of
equity exercise jurisdiction for the purposes of justice, but a
discussion of them will be found under other and appropriate
heads. For a general view of the subject, see Contribution.

§ 8. Liens. Matters of account, constituting ground for the
interference of courts of equity, also arise out of the subject of
liens. And in many cases of this kind, a resort to a court of
equity, to ascertain and adjust the account, would seem to be
absolutely indispensable for the purposes of justice. See Patty
V. Pease, 8 Paige, 277; Skeel v. SpraTcer, id. 182 ; see, also, title
Liens.

§ 9. Rents and profits. Equity has jurisdiction in many cases
of account, pertaining to rents and %>Tojits, not only when they
arise from privity of contract, but also when they arise
from adverse claims and titles, asserted by different persons.
See Bac. Abr., Accompt, B. Accounts between landlord and
tenant frequently extend over a long period of time ; and in
cases of this kind, where there are controverted claims, a resort
to courts of equity often becomes necessary in order to obtain a
due adjustment of the respective rights of each party. See 1
Story's Eq. Juris., § 508; Hodges v. Pingree, 10 Gray, 14. In the
ordinary case of mesne profits, where there is a clear remedy at
law, courts of equity will not interfere, unless there are some
special circumstances, rendering interference necessary. But, if
such circumstances exist, equity will interfere, not only in cases
arising under contract, but in those arising under torts also ; as,
where a man intrudes upon an infant's lands, and takes the
profits, he may be compelled to account for them, and will be
treated as a guardian or trustee for the infant. Dormer v. For-



ACCOUNTING. 187

tescue, 3 Atk. 129 ; Carey v. Burtie, 2 Yern. 342. So, if there is
a trust estate, and the cestui que trust comes into equity upon
his title to recover the estate, he will be decreed to have the
further relief of an account of the rents and profits. Dormer v.
Fortescue, 3 Atk. 129 ; and see Curtis v. Curtis, 2 Bro. Ch.
620 ; 1 Story's Eq. Juris., § 512.

It has been held, that where matters of account affecting heirs
relate entirely to the rents, issues, and profits of lands in contro-
versy, and would be included in an adjustment of the rights to
the land, there is no sufficient reason for taking them into equity
for settlement. Claussen v. Lafranz, 4 Greene (Iowa), 224.

§ 10. Waste. It would seem to be the established doctrine,
that to maintain jurisdiction in equity for an account in cases of
waste, there should be a prayer for an injunction to prevent
future waste. See Grierson v. Eyre, 9 Yes. 89 ; Pulteney v.
Warren, 6 id. 89 ; Phillips v. Allen, 5 Allen, 85. Though the
better doctrine probably is, " that where discovery is sought, and
is obtained, there, also, to prevent multiplicity of suits, an
account ought to be decreed without the additional ingredient of
an injunction to stay future waste." See 1 Story's Eq. Juris.,
§ 518 ; Watson v. Hunter, 5 Johns. Ch. 169 ; Eden on Injunct.
206 ; Kerr on Injunct. 284. Mines and collieries, being a species
of trade, an account of profits will in all cases be granted with-
out reference to the question whether or not an injunction will
lie ; or whether or not there is a remedy at law. Id. 285.

ARTICLE 11.

WHEN- NO ACTION CAN BE MAINTAINED.

Section 1. In general. It may be stated generally, that courts
of equity decline jurisdiction in matters of account : 1. Where the
demands are all on one side, and no discovery is claimed or nec-
essary ; 2. Where on one side there are demands, and on the
other mere payments or set-oflEs, and no discovery is sought or
required. Lafever v. Bellmyer, 5 W. Ya. 33 ; Gloninger v. Haz-
ard, 42 Penn. St. 389 ; McMartin v. Bingham, 27 Iowa, 234 ;
Haywood v. Hutchins, Q^ N. C. 574. In these cases, there is
not only a complete remedy at law, but there is nothing requir-
ing the peculiar aid of equity, to ascertain or adjust the claim.
See Id.; Foster y. Spencer, 2 Johns. Ch. 171; Durant v. Ein-
stein, 35 How. 223, 241; S. C, 5 Rob. 423.



188 ACCOUNTING.

It has been held, that a court of equity will not entertain a bill
for an account, even between partners, when the items, both of
credit and debit, arise from a special contract, and are few and for
fixed and definite sums and easily ascertained by the verdict of
a jury. Lesley v. Mosson, 39 Miss. 368. So, the mere relation
of creditor of the defendant is not, of itself, suflicient to entitle
the plaintiff to an accounting. Salter v. Ham, 31 N. Y. (4 Tiff.)
321. For other instances in which jurisdiction in equity over
accounts has been denied or declined, upon the ground that
under the peculiar circumstances equity ought not to interfere,
see Southgate v. Montgomery^ 1 Paige, 41 ; Morris v. Mowait,
4 id. 142 ; Fowle v. Lawrason, 5 Pet. (U. S.) 494 ; Poage v.
Wilson, 2 Leigh (Ya.), 490 ; Olioer v. Palmer, 11 Grill. & J.
(Md.) 426.

§ 2. Defenses to action. In some cases the right of a party to
sue in equity for an accounting, though originally good, may be
impaired or defeated ; as, by long-continued delay to prosecute
the suit. Boiling v. Boiling, 5 Munf. (Ya.) 334 ; Mooers v.
White, 6 Johns. Ch. 360 ; or by the pendency of another suit
covering the same matters. Boyd v. HawMns, 2 Dev. (N. C.)
195 ; Hertell v. VanBuren, 3 Edw. Ch. 20 ; or by the death of a
party to the transactions in question. Bertine v. Varian, 1 Edw.
Ch. 343 ; Randolph v. Randolph, 2 Call (Ya.), 537 ; or by a
previous voluntary accounting. Id.; Heartt v. Corning, 3 Paige,
566 ; Weed v. Small, 7 id. 573. So, where transactions have
become obscure and entangled by delay and time, a court of
equity will not readily decree an account. There is, however, no
precise rule on this subject ; each case depending upon the exer-
cise of a sound discretion on the circumstances. Rayner v.
Pearsall, 3 Johns. Ch. 578.



ACCOUNTS AND ACCOUNT STATED. 189



CHAPTER Y.

OF ACTIONS KELATING TO ACCOUNTS, OR TO AN
ACCOUNT STATED.



ARTICLE I.

ACTIONS UPON OR RELATING TO ACCOUNTS.

Section 1 . What is a matter of account. Matters of account
properly chargeable, and for the recovery of which an action will
lie, include personal property sold and delivered, services per-
formed, and materials found and provided, and the use of such
property hired and returned. See, generally, Merrill v. Ithaca
cfe Owego R. R. Co., 16 Wend. 586 ; Terr ill v. Beeclier, 9 Conn.
344 ; Clarfc v. Savage, 20 id. 258 ; Fry v. Slyfield, 3 Vt. 246 ;
Austin V. Wheeler, 16 id. 95 ; Shoemaker v. Kellogg, 11 Penn.
St. 310. Lottery tickets have been held properly chargeable in
a book account in Delaware. Rogers v. Bailey, 4 Harr. 256 ;
Gregory n. Bailey, id.; and see, also, May v. Brownell, 3 Vt.
463. And where parties have mutual dealings, and rent from
one to another becomes a subject of account between them, by
mutual understanding and arrangement, it is recoverable in an
action on acccount. Nedmdek v. Meyer, 46 Mo. 600.

On this subject the "book debt" law of the various States
should be consulted.

§ 2. What is not a matter of account. Charges in a book,
which are not in the nature of liquidated sums, or prices or val-
ues, but damages which can be rendered certain only by conven-
tion or judicial decision, are held not matters of book account.
Swing v. Sparks, 7 N. J. L. (2 Halst) 59. See Stow v. Black, 37
Vt. 25; Scott V. Lance, 21 id. 507. Nor are special or executory
contracts, especially concerning lands, bonds, bills, notes, etc.,
proper matters of book account. Wilson v. Wilson, 6 N. J. L.
(1 Halst.) 95. See Stevens v. Damon, 29 Vt. 521. So, it has been
held, that a charge of a specified sum, as difference on exchange of
chattels, cannot be stated as a matter of book account, but should
be specially set forth. Anonymous, 16 N. J. L. (1 Harr.) 395.
And, among other things, not regarded as matters of account,
may be mentioned compensation for the use and occupation of



190 ACCOUNTS AND ACCOUNT STATED.

land. Case v. Berry ^ 3 Vt. 332 ; a balance due on a promissory
note, Stevens v. Damon, 29 id. 521 ; damages for a tort, Peach
V. 3fllls, 14 id. 371 ; Brinsmaid v. Mayo, 9 id. 31 ; or for the
breach of a special contract remaining unexecuted but in part,
Smith V. Smith, 14 id. 440.

§ 3. Books of account, how kept. The mere form in which a
charge is made upon or in books of account is not material in
determining the right to recover therefor. Scott v. Lance, 21 Yt.
507. The law does not require that books of account should be
kept in strict accordance with the most approved systems of
book-keeping. They may be kept in the form of an ordinary
journal or day-book, or in ledger form, where the account of
each man dealing with the party is kept by itself. Prince v.
Smith, 4 Mass. 55 ; Slade v. Teasdale, 2 Bay. (S. C.) 173. So,
almost any series of figures, abbreviations and words, which can
be explained into a signification, will do for particular charges,
if conformable to the party' s ordinary course of making his en-
tries, the language he speaks, his degree of education, and the
nature of his business. Rowland v. Burton, 2 Harr. (Del.) 288;
Stroud V. Tllton, 4 Abb. Ct. App. (N. Y.) 324; S. C, 3 Keyes,
139 ; Merrill v. Ithaca & Owego R. R. Co., 16 Wend. 595. But
as books of account are intended to keep a correct statement of
the items of an account, with the date, quantity, price, or value
of each item, it is a general rule, that entries are improper when
made in gross or by the lump. Such is a charge by a mechanic
for "190 days' work." Lynch^ s AdwCr v. Petrie, 1 Nott & M.
(S. C.) 130. Or a charge by a physician, of thirteen dollars, for
medecine and attendance in curing the whooping cough. Hughes
v. Hampton, 2 Const. Rep. 745. See 2 Wait's Law & Pr, 449. A
physician may, however, properly include in one charge the
items of medicine furnished, as well as the compensation for his
visit, on any single occasion. But a merchant's bill must be
made out differently. He cannot charge for a bill of goods sold
in gross, but must give the date, articles, quantity, value, or
other specification requisite to an accurate account. lb.

§ 4. Books, how proved. The rules in the several States in re-
gard to the proof of books of account are far from being uniform.
Generally, before the books of the party can be admitted in evi-



Online LibraryWilliam WaitA treatise upon some of the general principles of the law, whether of a legal, or of an equitable nature, including their relations and application to actions and defenses in general, whether in courts of common law, or courts of equity; and equally adapted to courts governed by codes (Volume 1) → online text (page 31 of 93)