This may be one of the most important (or perhaps misguided) articles I’ve ever published. This article describes my theory du jure that virtually all modern court proceedings (from traffic tickets to civil suits to felonies) may be, at base, “actions of account”—and, if so, how those actions might not only be stopped, but stopped easily, almost laughably.
The article is long (23,000 words). I haven’t proofread it. And it’s pretty much pure conjecture. I’m not sure how clearly I’ve conveyed my theory, but if you can understand this article, I think you might become as excited as I am. I could be wrong. I could be way wrong. But my intuition is screaming like a woman in orgasm saying: “Yes
, Yesss, Yesssss!!!
”
Unfortunately, I sometimes suspect that my intuition has learned how to “fake it”. If so, none of us, including me, can afford to absolutely believe the theory I’m advancing. Nevertheless, for me and for now, this feels more like
insight
than theory—and important insight, besides. I wouldn’t bet even money, but if you give me odds, I’d bet we just might be close to the proverbial “silver bullet”.
Note that for some reason unknown to me, WordPress is not publishing my colorized highlighting in the following text. That may be a blessing for most readers, but it it bugs me. My own comments within the text quoted from other sources are normally bold, blue and bracketed. In this case they will only be
[bold and bracketed]
.
I subscribe to the theory that modern gov-co has created a set of alternative “states” (with names like “STATE OF TEXAS” or “TX”) that are artificial, or implied, or territorial and not States of the Union (whose proper names are like “The State of Texas”). The cornerstone of this theory is Article 1 Section 10 Clause 1 of the national Constitution which declares in part, “No State shall . . . make any Thing but gold and silver Coin a Tender in Payment of Debts.” This constitutional mandate has never been repealed and cannot be suspended by virtue of mere statute.
However, there has been virtually no gold coin in domestic circulation since A.D. 1933 nor virtually any silver coin in circulation since A.D. 1968. So how can the States (of the Union) continue to impose taxes, collect fines or pay their employees and officers without gold or silver coin (or a currency backed by gold/silver coin) without violating Article 1 Section 10 Clause 1 of the national Constitution?
They can’t.
So what’s happening? It appears to me that either:
1) the States of the Union are operating
unconstitutionally
by using FRNs to collect taxes and fines and pay their debts; or
2) by removing gold and silver coins from circulation the federal gov-co has intentionally rendered the States of the Union (with proper names like “The State of Texas”) insolvent and virtually inoperable and then supplanted those States of the Union with an alternative set of fictional or territorial “states” with names like “STATE OF TEXAS” and “TX”. If the modern “state” of “TX” is not a State of the Union, it is not bound by The Constitution of The State of Texas nor by Article 1 Section 10 Clause 1 of the national Constitution. Thus, because such alternative “states” were not States of the Union, they could freely and “privately” conduct their business transaction with FRNs without violating either the State of national Constitutions.
The critical distinction between “The State” (of the Union) and “this state” (fictional or territorial) was the kind of “money” used in each venue. Within the States of the Union, you had you use gold or silver coin (or a paper currency backed by gold or silver coin) to PAY your debts. In “this state” (TX), the people can use legal tender (FRNs) to DISCHARGE (rather than “pay”) their debts.
The use of legal tender is a great benefit because it allows us to purchase items like food, cars or homes with perfectly worthless pieces of green paper called “FRNs” that have no more intrinsic value than Parker Brothers monopoly money. Thus, I can go out for dinner tonight, eat a delicious, rare porterhouse steak, and discharge my bill with a worn piece of paper that reads “$20” but cost less than a nickel to produce. Thanks to the benefit of legal tender, I am virtually eating for free. Likewise, thanks to legal tender, I can purchase a new suit, new car or new home without ever actually “paying” for my purchases.
Is this a great country, or what?!!
A: “or what”.
Unfortunately, there appear to be a couple of teensy-weensy “downsides” to the use of legal tender. For example, since our FRNs are issued by a private entity called the Federal Reserve System, they are a private currency and, as condition for the privilege of using private currency (FRNs) to discharge our debts and “get something for nothing,” we have to pay income taxes.
Second, although our debts are discharged through the magic of legal tender, those debts are not yet “paid” and are probably stacking up in the form of the total American debt (somewhere between $75 and $130 trillion) as well as piled up in the world’s foreign central banks as the “world’s reserve currency”. When those all those debts and FRNs come flooding back into this country, there will be a day of reckoning (accounting) that will bankrupt his country and cause the United States to be carved up and sold off like a Christmas turkey.
Third, because the FRNs are LOANED into circulation by the Federal Reserve System, legal title to the little green pieces of paper in your wallet remains with the Fed until the original loan is repaid. In fact that loan will probably never be repaid in full. That implies that everything your purchase with FRNs has a kind of divided ownership: you (as holder of the FRN) will receive equitable title to whatever you purchase; the Federal Reserve System (as owner of the legal title to notes they mere LOANED into circulation) will receive LEGAL title to whatever your purchased with “their” currency.
Implication? Because you have only equitable title to the property you’ve purchased with FRNs, you have standing to appear in a court of equity concerning your property. But because the Fed holds legal title the property you purchased with FRNs, you have no standing to take any case involving you property to a court of LAW.
In a court of law, everyone—including the judge—is bound by the law. In a court of equity, the judge is bound only by his alleged conscience. In courts of equity, the judge can do just about anything that strikes his fancy. Court’s of equity are not necessarily like Hell, but they are not like Disneyland either (they’re not the happiest kingdom of all).
Our use of FRNs strips us of our rights at law and exposes us to the unpredictable and “tender mercies” of judges sitting in equity.
When you stop to think about it, legal tender is a long ways from a real benefit. In fact, use of legal tender can be compared to an act of national suicide.
In any case, the fundamental purpose of the alternative “states” appears to be to provide a forum where we can freely transact our affairs with legal tender rather than lawful money (gold/silver coins).
There is no doubt that money and the love of money lies at the heart of our current national peril.
KAHRE CASE
I recently read commentary on the Kahre case in Las Vegas in which Mr. Kahre had been paying his assistants in gold coin rather than Federal Reserve Notes (FRNs). Mr. Kahre could deduct the full cost of the coins as an expense from his business. Because the gold coins were defined as “legal tender” in Title 31 of the United States Code, the assistants were only obligated to pay income taxes on the
face value
of the coins.
For example, if an assistant were paid each week with a one-ounce gold eagle with a face value of $50, at the end of a 50-week work year, the assistant would’ve been paid a total, taxable income of $2,500 (in gold eagles). The income tax liability on $2,500 would be zero.
At the same time, if gold eagles were selling for $1,000 each, Mr. Kahre could deduct $1,000 a week for each coin he paid his assistant from his income tax liability for that $1,000 or paying unemployment, etc..
The net result was that the IRS was getting beat out a significant amount of income taxes they felt were due. Worse (from the IRS perspective), Mr. Kahre’s example might be emulated by thousands or even millions of other Americans interested in avoiding income taxes. The IRS was not amused. Therefore, about A.D. 2007, the IRS sued Kahre and 8 or 9 other defendants for something like 160 counts and couldn’t get a single conviction. Unfortunately for Mr. Kahre, while four of the defendants were acquitted by the jury, he was not and the IRS came back this year with another lawsuit that remains to be determined.
Reading an article about the Kahre case, I began to realize that the key to not only the Kahre case but most of modern courtroom confrontation is the definition of the modern “dollar”. Today, everyone uses “dollars” (Federal Reserve Notes; FRNs); everyone counts “dollars”; everyone “lusts” for “dollars”. But virtually no one knows what a modern “dollar” actually is.
If I’m correct in believing 1) that our federal gov-co has established a set of alternative, territorial “states” to supplant the States of the Union; and 2) the primary purpose of those territorial “states” is to allow the use (and national destruction) inherent in legal tender—the it follows that a precise understanding of the exactly nature of the modern U.S. dollar may be the KEY to understanding the nature of the alternative, territorial “states”.
If you can understand modern “dollars,” you can understand the current territorial “states”. If you can understand our territorial “states,” you can probably avoid them or even use them to your advantage.
SO WHAT THE HECK IS A “DOLLAR”?
Realizing that the definition of the modern “dollar” is critical to understanding “this state,” I started reading the earlier editions of
Black’s Law Dictionary
and learned that “real” (gold and silver) dollars were defined as “units of
value
”.
Then (by grace of God) I stumbled onto today’s Uniform Commercial Code definition of “money” as a “unit of
account
” (see, UCC1-201(24)). Instantly, I was virtually convinced that if I could discern the difference between a “unit of
value
” and a “unit of
account
,” I’d understand the definition of the modern “dollar”—and having that understanding, I might be able to walk right through the valley of the shadow of “this state” and “fear no evil”.
Since modern money is defined as a “unit of account,” I began to explore the meaning of the word “account”. I read
Black’s
3rd (A.D. 1933) and learned that an “account” was defined in part as:
“A detailed statement of the mutual demands in the nature of debt and credit between parties, arising out of contracts or some
fiduciary
relation. . . . The word is sometimes used to denote the balance, or the right of action for the balance appearing due up a statement of dealings; as where one speaks of an assignment of accounts; but there is a broad distinction between an
account
and the mere
balance
of account, resembling the distinction in logic between the premises of an argument and the conclusions drawn there from. I balance is but the conclusion or result of the
debit and credit sides
of an account. It implies
mutual
dealings and the
existence of debt and credit
without which there could be
no balance
. . . .”
I was instantly intrigued by the possibility that most modern court cases may be nothing more than “actions on account”. More than a few researchers contend that everything in the modern legal system is “commercial”. If they’re right, that argument is not far removed from the idea that everything in the courts may be nothing more than an attempt to “balance” an account.
The more I read about accounts, the more persuaded I became that most of what takes place in our courts today is an action on account.
For example I began to suspect that your drivers license number may identify an account. Your traffic tickets may be nothing more than “items” in that account. When you go to court to adjudicate a traffic ticket that court’s fundamental business is simply to
balance the account
.
That could explain why the court is fundamentally disinterested in any arguments that suggest that you have “constitutional rights”. In the context of an “account”, your constitutional rights are essentially irrelevant. Even if you are a sovereign or foreign national, if you are a debtor, you should pay your debts. You can’t hide behind the Constitution as a means to evade your debts.
In the matter of account, there appear to be only two fundamental questions:
1) Does an
account relationship
exist between the plaintiff and the defendant?
2) Does the defendant occupy the role of
debtor
relative to the plaintiff?
If the answers to those two questions are Yes, then the court’s only businesses to discover how much the defendant owes to the plaintiff and then “balance” the account by compelling the defendant-debtor to pay up. I have to admit that this description sounded very much like our modern court cases. I began to suspect that the words “case” and “account” might be virtually synonymous in the context of our modern courts.
Then I read Black’s 8th’s definition of “account” and learned that,
“The action of account lies where one has received goods or money for another in a
fiduciary
capacity, to ascertain and recover the
balance
due. It can
only
be maintained where there is such a
relationship
between the parties as to raise an obligation to account and where the
amount due
is
uncertain and liquidated
.”
Now I was excited. If the modern action of account exists only where there is a
fiduciary
relationship, and if that were true that the vast majority of cases going into our courts are actions of account, then it might follow that so long as you are able to avoid being labeled a
fiduciary
, you might avoid going to court.
PERSONAL EVIDENCE
It seems surprising that most civil suits (and perhaps even criminal prosecutions) may be nothing more than “actions on account”. More, it seems unlikely that an alleged defendant might stop a civil suit by simply declaring himself to be a “non-fiduciary”. But I have personal experience to support this conjecture.
In A.D. 2002, two police entered my home without warrant, arrested me without warrant and caused me to be extradited to Missouri where I was held 344 days in a level-5 maximum security jail based on claims of two alleged felonies. Each of these felonies carried a potential five-year sentence. In theory, I could have been sentenced for
10 years
.
However, I was not sentenced, I was not convicted, I was not tried, I was not given a probable cause hearing, and I was
not even actually charged with a crime
. I was essentially kidnapped and simply released after 344 days in the slammer.
Why was I released
without even being charged
? I believe the fundamental reason is that I signed my waiver of extradition “
at arm’s length
“. The “at arm’s length” disclaimer means that I declared myself be acting in a
non-fiduciary
and
non-representative
capacity and
agreed to be extradited in those capacities
. That waiver of extradition was subsequently signed and sealed by a Dallas judge and court clerk, so there was no denying my non-fiduciary capacity in the matter.
The Missouri court that caused my extradition from Texas didn’t realize that they’d extradited me as a non-fiduciary until after I’d been “deposited” into their county jail. They didn’t have brains enough to prosecute a “non-fiduciary” for an alleged breach of a fiduciary obligation. I didn’t have brains enough to know how to compel them to turn me loose. So we had a Mexican standoff for most of a year until they finally released me.
In A.D. 2002, I was convinced that the key to their inability to even charge me was my “at arm’s length” disclaimer. But back then, I had no inkling that the entire case might’ve been an “action on account”.
Today, knowing that there can be no “action on account” in a court of equity without a
fiduciary
relationship, I’m about 98% convinced that because I’d signed “at arm’s length,” they had no “account” on which to proceed in equity and so the whole case jammed and could not proceed.
My story is only an anecdote and proves nothing. Nevertheless, my successful use of the “at arm’s length” disclaimer to stop two
felony
allegations from even being filed is evidence that the modern system (even in criminal matters) may be operating for the primary purpose of simply “balancing”
accounts
.
GOOGLE BOOKS
Google Books is one of the internet’s great resources. Google has scanned and indexed hundreds of thousands of books into an enormous computer data base. Many of these books are texts on the law that were written in the 1700s, 1800s, and 1900s. These older books are available for free.
So, wanting to learn more about “action on account,” I entered that phrase into the Google Books search engine and Google produced a list of hundreds of free books that included that phrase. After a little fishing in that list I found
A Treatise Upon Some of the General Principles of the Law
written in A.D.
1877
by
William Wait
. I downloaded the 800 pages, and separated out the 26 pages that dealt with “actions on account”.
That text—now “colorized” with my various highlights and expanded with my blue, bracketed comments follows. Virtually everything I read therein tends to support the possibility that all modern court cases might be “actions of account” being prosecuted in courts of equity.
CHAPTER
IV.
OF ACTIONS RELATING TO, OR FOUNDED UPON, AN ACCOUNTING.
ARTICLE I.
ACTION OF ACCOUNT AT LAW
.
Section 1. When the action lies
. Account is a
very ancient
form of action at the
common law
, and all the authorities agree in representing it to be
one of the most difficult, dilatory and expensive actions
that ever existed.
[Actions of account may be the “most difficult” ever
at law
, but what about in
equity
? As you’ll read, “equity is easy”. But because actions of account at law are so “difficult, dilatory and expensive” no rational person will take an “account of account” to a court of law. This implies that if you can stop an action of account from proceeding in equity, the case will probably be dropped even though an account at law might still exist. That implication is the key to this article. If you can stop the gov-co from prosecuting an action of account in equity, you may have stopped them cold. How do you stop ‘em? Perhaps by simply refusing to appear as a fiduciary in the matter. As you’ll see, if this conjecture is valid, it may not be necessary for a defendant to deny the debt, so long as he denies being a fiduciary in that debt relationship. If there’s no fiduciary, there’s no equity, and the action of account must either proceed at law or be dropped.]
It has
long since given place to other remedies both in England and the United States
, and may now be regarded as
obsolete
. [Actions of account
at law
may be “obsolete,” but actions of account
in equity
appear to be alive, well and flourishing.]
In some of the States, however, the action is in use in a modified form, to supply defects in their system which arise from the want of a
court of equity
. See
Duncan v. Lyon,
3 Johns. Ch. 351 ;
Couscher v. Tuolan,
4 Wash. 442 ;
Griffith v.Willing,
3 Binn. (Penn.) 317 ;
Stewart v. Kerr,
1 Morr. (Iowa) 240 ;
McMurray v. Rawson,
3 Hill (N. Y.), 59 ;
Munroe v. Luke, 1
Mete. (Mass.) 464.
At common law
, the action of account would lie against
guardians in socage, bailiffs and receivers
; and, in favor of
trade
[as opposed to “commerce”?]
,
by one merchant against another
. By
statute
, as in New York and Virginia, it would lie against a joint tenant or tenant in common of real estate for receiving more than his just share and proportion. See
McMurray v. Rawson,
3 Hill, 59 ; 3 Rob. Pr. 411 ;
Appleby v. Brown,
24 N. Y. (10 Smith) 143 ; S. C., 2′d How. 207.
§ 2. When the action does not Lie
. By the old
common law
, account did
not
lie for
one tenant in common against his co-tenant
,
unless
the latter had taken
all
the
profits
of the land; nor by a
joint tenant against his companion
,
unless
the latter had received
all
the
profits
for the common
benefit
of both, and not for his own use merely.
[“Profit” is a “benefit” in a trust relationship?! That’s why “profits” can be taxed?!]
Archb. N. P. 292.
Nor could the action be brought by an executor or administrator, nor against an executor, administrator, or infant
(Ib. See
Appleby v. Brown,
24 N. Y. [10 Smithi 143); and it
would only lie between
two
merchants, and not where the partnership consisted of a larger number
. Ib.;
Portsmouth v. Donaldson,
32 Penn. St 202 ;
Duryea v. Whitcomb,
31 Vt. 395.
However, it is found by experience that the most ready and effectual way to settle these matters of account is in a court of equity ; and the remedy by action of account has been very generally supplanted by the more beneficial powers of such a court, whereby not only the production of papers and an account can be compelled, but also an answer on oath can be required and a decree had for the sum due from the defendant. See 3
Bl. Com
. 162, 163 ;
Aft' Vale B. C. v. Nixon,
1 H. L. Cas. 111;
Neal v. Seel' s _Executors,
4 T. B. Mow. (Ky.) 162 ;
Attorney-General v. Mayor, etc., of Dublin,
1 Bligh (N. S.), 336.
ARTICLE II
ACTIONS OF ACCOUNT IN EQUITY.
Section 1. In general
. Courts of equity began to
assume jurisdiction
in matters of account at a
very early
period ; and they have for a great length of time exercised a general jurisdiction not only in all cases of
mutual accounts
, but have
extended
the remedy to a
vast variety of cases
to which the
remedy at law never was applicable
.
No precise rule
can be laid down on the subject, but it may be stated
generally
, that in
all
cases in which an action of account would be the
proper remedy at law
,
and
in
all
cases where a
trustee is a party
, the
jurisdiction
of a court of equity over accounts is
undoubted
.
[Does the author indicate 2 separate “grounds”—either of which can implicate an account in equity? Or, as is more probably the case, does the author allege that
both
“conditions precedent” must be present before the court of equity can assume jurisdiction?
It must be that if an account
at law
is present, the proper arena to settle that account would be in a court of law. But if an account at law were present AND one of the parties was a
trustee
, THEN that account could be settled in equity. This is consistent with other texts that declare that there is
no
“action on account” in equity without a fiduciary relationship.
Therefore, if a defendant can make an effective denial of the fiduciary relationship, the plaintiff will presumably be forced to proceed at law (the most “difficult, dilatory and expensive” process) or drop the case.
More, in today’s circumstances, it’s at least questionable if there’s any basis for an “account
at law
”. If that first element of the modern account process is missing, the court of equity
might
also be stopped from proceeding.
However, I’ll bet that modern “actions on account” in courts of equity are based on some sort of 1) account in equity (rather than at law); and 2) the presence of a fiduciary. If so, the most likely defense will be to deny that the defendant has voluntarily consented to act as a fiduciary in relation to the plaintiff in the matter/account at issue.]
But in transactions not of this
peculiar character [A transaction may be “peculiar” if it is a
mix
of law and equity—
much like our courts now mix the procedures of law and equity
.]
,
great complexity ought to exist
in the accounts, or
some difficulty at law [no lawful money?]
should interpose, some
discovery
should be
required [a right of
inquiry
based on notice?],
in order to
induce a court of chancery to exercise jurisdiction
.
Bolter v. Biddle,
Baldw. C. C. 394 ;
S’eymow v. Long Dock Co.,
20 N. J. Eq. 396 ;
Laifever v. Bellmyer,
5
W. Va.
33 ;
Gloninger v. Hazard,
42 Penn. St. 889 ;
CUI7117tha
v.
White,
5 Blackf. (Ind.) 356 ;
Smith v. Leveaux,
2 De G., J. & S. 1;
Fowle v. Lawrason,
5 Pet. (U. S.) 495.
§ 2. No remedy at law.
Jurisdiction
in equity, in cases of account, has been placed by Mr. Justice BLACKSTONE upon the
sole ground of the right of the courts of equity to compel a discovery
. 3 Black. Comm. 437, 439.
[Get that? Equity jurisdiction was formerly based solely on a right of “discovery”. No “discovery,” no equity jurisdiction.]
But this, although admitted to be a strong ground of jurisdiction, is
not
in modern times regarded as the
sole ground
.
Chancery has jurisdiction of matters of account, notwithstanding no discovery is required
.
Ludlow v. Simond,
2 Caines (N. Y.), 1; and this jurisdiction is founded upon the
consideration
, that the
remedy in equity
, in cases of account, is generally more complete and adequate than it is or can be at law. lb. Duncan v. Lyon, 3 Johns. Ch. 361 ; Rathbone v. Warren, 10 Johns. 595 ; McLaren v. Steapp, 1 Ga. 376; Walker v. Cheever, 35 N. H. 339 ; Watt v. Conger, 21 Miss. 412; Whitey. Hampton, 10 Iowa, 238 ; Scruggs v. Luster, 1 Heisk. (Tenn.) 150. So, it is the well-established American doctrine, that where equity obtains jurisdiction of a cause for any purpose, it will generally retain it, until
complete
justice is effected.
[I’ll bet that “
complete
justice” cannot be had until the account is EXTINGUISHED. Given the use of legal tender, debts are discharged but not paid. A discharged debt necessarily implies an account that might be “balanced,” but is certainly not “closed”. Thus, in the matter of an account that’s been “balanced” with legal tender, the court of equity could retain jurisdiction indefinitely.
More, the text implies that if there were a case with five issues—one in equity and four at law—once the court of equity acquired jurisdiction over the single issue in equity, it would thereby also acquire jurisdiction over the four issues at law that would normally have to be heard in a court of law.
This suggests that a sensible defendant faced with multiple charges would seek to distinguish between the charges at law and the charges in equity and attempt (if possible) to separate those charges so that the charges at equity were heard by a court of equity while the charges at law were heard in separate process before a court of law. More probably, the best defense would be to prove there was no basis (no fiduciary relationship) on which to base equity jurisdiction. Once the fiduciary relationship were effectively denied, the court of equity might be unable to proceed and the plaintiff’s/prosecutor’s only recourse might be to proceed with the “action of account” at law—the “most difficult, dilatory and expensive” of processes.] Corby v. Bean, 44 Mo. 379 ; Peoria v. Johnson, 56 Ill. 45 ; Boyd v. Hunter, 44 Ala. 705 ; Day v. Cummings, 19 Vt. 496; Traip v. Gould, 15 Me. 82 ; Lafever v. Bellonyer, 5W W. Va. 33 ; DeBemer v. Drew, 39 How. (N. Y.) 466 ; 57 Barb. 438 ; Rathbone v .Warren, 10 Johns. 595. But this maxim is properly applicable, only where the court obtains legitimate jurisdiction of the cause, and for some reason, affecting the cause, or some portion of it.
[I suspect that the “cause” may be the account relationship. If so, then if the court obtained jurisdiction over the creditor/plaintiff (one party to the debtor/creditor relationship), it would also have acquired jurisdiction over the entire “cause” (relationship) including the other party to the relationship—the debot—a/k/a “defendant”.]
Thus, if proper application is made to a court of equity for an injunction, to restrain the infringement of a patent, the court will retain the cause, and will settle other matters between the parties, inseparably connected with the infringement, but which do not constitute ground for original equitable jurisdiction. [Damn. Then once the court of equity acquires ANY jurisdiction over an account between two parties, that court can continue to exercise equitable jurisdiction over almost any issue that is remotely connected with that account—even if that issue is at law rather than in equity. Equity can “capture” cases and causes that would otherwise be heard at law.] Brooks v. Stolley, 3 McLean (C. C.), 523. So, where application is made in equity by one partner [One “party” to the “account”?], to restrain his copartners from violating partnership articles, the cause will be retained, and other matters disposed of, not strictly of equitable cognizance. See 1 Story’s Eq. Juris., § 74, b ; Green v. Spring, 43 Ill. 280 ; Daniel v. Green, 42 id. 472 ; DeBemer v. Drew, 39 How. (N. Y.) 466 ; 57 Barb. 438. If, however, the object of the party in coming into equity is general discovery merely, it gives the court no jurisdiction of the cause. 1 Story’s Eq. Juris., § 74, c; see Powle v. Lawrason, 5 Pet. (U. S.) 495; Stacy v. Pearson, 3 Rich. Eq. (S. C.) 148 ; Lyons v. Miller, 6 Gratt (Va.) 427, 438; Mitchell v. Greene, 10 Mete. (Mass.) 101 ; Pease v. Pease, 8 id. 895.
§ 3. Mutual accounts. Courts of equity exercise a general jurisdiction in all cases of mutual accounts, and a fortiori, when complicated [by conflicts or law, place, or legal tender?], and this upon the ground of the inadequacy of the remedy at law. Ludlow v.Simond, 2 Cal. Cas. (N. Y.) 1, 38, 52 ; Lalever v Benny er , 5 W . Va. 33 ; Gloninger v. Hazard, 42 Penn. St. 389. So, such courts also entertain jurisdiction, when the accounts to be examined are on one side only, and a discovery is wanted in aid of the account, and is obtained. See Oil Co. v. Adams, 6 Phila. (Penn.) 182 ; Pearl v. Nashville, 10 Yerg. (Tenn.) 179. [By an account to be examined “on one side only”, the author is essentially saying that there is only one witness—the creditor and the creditor’s records—on which to initiate the case. In other words, the plaintiff (alleged creditor) files the case based only hos his personal records of the “credit side” of the alleged account. But one witness is insufficient to support an award or conviction. So the court of equity would compel “discovery” against the alleged debtor/defendant to uncover evidence of the other “side” (the debt side) of the alleged account that might be kept in the defendant’s records. If discovery revealed that the defendant had records of the “debt side” of the alleged account, the court would have TWO witnesses to the existence of the account, and an action of account could proceed. On the other hand, if discovery against the defendant revealed no evidence of the “debt side” of the allege account relationship—and especially if the defendant effectively denied being a fiduciary in the matter—the court of equity might be stopped from acquiring jurisdiction. This, in turn, suggests that the fundamental reason for “discovery” is to find a second witness by the defendant that is sufficient to warrant jurisdiction in a court of equity.] But where the accounts are all on one side, and no discovery is sought or required, the jurisdiction will not be maintainable.
[But who must “seek” the discovery? The plaintiff or defendant? I think the answer must be “plaintiff”. The object of that discovery should probably be the defendant’s “side” of the “account”.
But if the defendant were to seek “discovery,” that might also be sufficient (all by itself) to warrant jurisdiction in a court of equity. For example, suppose a plaintiff or prosecutor filed a case in equity against a purported defendant—but that plaintiff didn’t “seek or require discovery”. In theory, the failure to seek/require discovery from the court would invalidate the plaintiff’s claim to equity jurisdiction. But what if the defendant then ignorantly responded to the plaintiff’s petition by unilaterally demanding discovery? Would the defendant’s demand for discovery be sufficient to warrant jurisdiction in equity? Seems so.
Why? Perhaps because the right of “discovery” is ultimately based in the existence of a debtor-creditor and/or fiduciary relationship between the plaintiff and defendant wherein one party to a “confidential relationship” is refusing to disclose information to which the other party is entitled. If that were true, a plaintiff who failed to seek or request discovery would implicitly admit that he had no right to do so and therefore there was no account-relationship (or perhaps fiduciary relationship) between himself and the defendant. If there’s no account- or fiduciary-relationship, the court of equity could not proceed.
On the other hand, if discovery is premised on the presence of an account- or fiduciary-relationship between the parties, and if a defendant demanded discovery, that defendant would implicitly confess the existence of the account- and/or fiduciary-relationship between himself and the plaintiff. Once the defendant implicitly confessed the existence of the account- and/or fiduciary-relationship between himself and the plaintiff, the court of equity might have a “second witness” to the account/fiduciary relationship and therefore have jurisdiction to proceed.] Walker v. Cheever, 25 N. H. 339. See McMartin v. Bingham, 27 Iowa, 234 ; Haywood v. Hutchins, 65 N. C. 574.
In illustration of the general principles here stated, it has been held that a court of equity may properly entertain jurisdiction where there has been a running account for many years between the parties, consisting of numerous items, notwithstanding
assumpsit
would also lie.
Hickman v. Stout,
2 Leigh (Va.), 6.
[Thus, once an account is established and continues over several years (say, an IRS account or better yet, a SS account into which you’ve contributed regularly), the court of equity will easily assume jurisdiction.
Conversely, if an “account” were only alleged for the first time, and if that “account relationship” were successfully denied by the defendant, the court of equity might be permanently deprived of jurisdiction. Point: It’s probably easy to stop an account at the
onset
, but once it’s been in effect for some time, the defendant’s participation in that account will only serve as evidence of his consent to enter that account as a fiduciary and/or debtor.]
And where the accounts between the clerk and marshal of a federal court had continued for a long time, until they became complicated, it was held, that chancery would take jurisdiction to enforce a settlement of the account, though there might have been originally, and still, a remedy at law.
Hay v. Marshall,
3 Humph. (Tenn.) 623 ; and see
Kirkman v. Vaulier,
7 Ala. 217. [Enforcing “settlement of the account” sounds a lot like “plea bargains”.] So, a series of consignments on one side, and of payments on the other, constitutes an account which may be settled by suit in equity.
McLin v. McNamara,
2 Dev. & B. Eq. (N. C.) 82 ; [The word “consignment” needs study. I think it might mean a special kind of “tender” wherein the one party “consigns” some goods or services intended for a beneficiary (RIIP) into the hands of that beneficiary’s fiduciary. A business might “consign” property intended for the account of “ALFRED ADASK” into the hands of its
fiduciary
“Alfred Adask”. Then either “ALFRED” (or perhaps “Alfred”) would responsible for making commensurate “payments” to the “seller”. . . .
Black’s
8th’s definitions of “consign,” “consignment,” and “consignation” suggest that my previous speculation may be roughly correct. . . . Note that a defendant’s “payments” can confirm the existence of an “account”.] and where a plaintiff seeks the taking and settling of a mere partnership account, it belongs to a court of equity.
Taylor v. Holman,
Mill’s Const. (S. C.) 172. A bill in equity is held to lie for an account of goods sold on commission, if complicated, or if there be embarrassment in making proof [An “embarrassment in making proof” sounds like a bank trying to foreclose on a house after the bank sold the mortgage to some firm in China and is no longer the real party in interest. The “embarrassment” may be that the plaintiff no longer has admissible evidence (only
copies
of admissible evidence and/or argument) to advance his case
at law
. Under such circumstances (when the plaintiff can’t produce sufficient
evidence
to prove his standing to sue at law), the court of equity may intervene to award some settlement or balance to the plaintiff—based on unrefuted
argument
that the alleged debtor is engaged in a fiduciary relationship that implicates the plaintiff in this account. In other words, without PROOF, a plaintiff might sue in equity so long as the defendant doesn’t refute the presumption that the defendant is or has a fiduciary.], though the items are all on one side.
Taylor v. Tompkins,
2 Heisk. (Tenn.) 89 ; and see
Hargrave v. Conroy,
19 N. J. Eq. 281.
[I know that bank deposit forms include a series of blanks where you can enter a list the “items” (checks) for deposit. I suspect that “items” may be intended to implicate property deposited into a trust relationship. But I’m not sure what “though the items are all on one side” means. It sounds as if all of the plaintiffs “items” (evidence of an account and/or fiduciary relationship) may be only on the “credit side” of the account. I.e., the plaintiff has no “items” from the alleged
debit
side of the account wherein the alleged debtor and/or its fiduciary have effectively
confirmed
the existence of the account relationship and the debt. Under such circumstances, the purpose of discovery might be to find proof from the defendant of the existence of the account relationship and the defendant’s role as debtor.]
But where the transactions between the parties have no business connection with each other, but stand entirely independent, as in case of a physician who renders services professionally to a farmer, and also buys produce of him, there is no jurisdiction in equity.
Haywood v. Hutchins,
65 N. C. 574.
[Equity is about “business”. All “business” goes to equity? What, exactly, does “business” mean? Always a “mutual” relationship wherein each party surrenders his status as an independent man? Is it presumed that in context of relationships that we cease to be men made in God’s image and endowed by our Creator with certain unalienable Rights? ]
In New Jersey, the court of chancery will not entertain a bill by one partner of a lottery firm for a discovery and accounting, and a division of the proceeds of a lottery, which is illegal, and a misdemeanor by the laws of that State [In A.D. 1877 (when this book was written) that would be a State of the
Union
]. And the fact that the lottery was conducted in another State where it was allowed by law, or that the drawing has been completed, so that nothing unlawful remains to be done (an accounting and distribution only being prayed), will make no difference.
Watson v. Murray,
23 N. J. (Law) 257.
[Damn! Thus, if activities “in this state” were illegal “within The State,” it
might
still be possible to argue that no account “in this state” can be enforced in equity if that account violates laws of “The State”.]
§ 4.
Appropriation
. In matters of account where
several debts are due
by the debtor to the creditor, it frequently becomes important to the parties to ascertain
to which of such debts a particular payment should be appropriated
. It is
not easy
in every
case to say how the appropriation ought to be made, but the following rules may be deemed well settled.
Where a person owes upon several distinct accounts, he has a right to direct his payments to be applied to any one of them as he chooses. This is called the
right
of appropriation.
Champenoes v. Fort,
45 Miss. 355 ;
Sing v. Andrews,
30 Ind. 429 ;
Leef v. Goodwin,
Taney (C. C.), 460 ;
Bacon v. Brown,
1 Bibb (Ky.), 334. But if this right be not exercised at the time of payment, the creditor may at any time apply the payment to which account he pleases.
Calvert v. Carter.
18 Md. 73 ;
Haymes v. Waite,
14 Cal. 448 ;
Mayor, etc. v. Patten,
4 Cranch (U. S.), 317;
Hargrove* v. Cooke,
16 Ga. 321 ;
Nuttall v. Brannin,
5 Bush (Ky.), 11. See
Waterman v. Younger,
49 Mo. 413 ;
Howard v. McCall,
21 Gratt. (Va.) 205. If no appropriation be made or indicated by either party, the application devolves on the law, or the court; which, it is said, will direct it according to equity. 1 Am. Lead. Cas. 283;
Emery v. Fichout,
13 Vt. 15 ;
LW’ v. Goodwin,
Taney (C. C.), 460;
‘Seymour v. Van Slyck,
8 Wend. 403 ;
Campbell v. Vedder,
1 Abb. Ct. App. (N. Y.) 295 ; S. C., 3 Keyes, 174. Generally, the payments will be applied to extinguish the debts according to priority of time.
Sprague v. Hazen- winkle,
53 Ill. 419 ;
Langdon v. Bowen,
46 Vt. ,512;
St. Albans v. Palley,
id. 448;
Fairchild v. Holly,
10 Conn. 178;
Crompton v. Pratt,
105 Mass. 255. [Today, the “payments” in legal tender don’t normally
extinguish
debts—they only
discharge
them.] But this role is not universal. If it appears that the intention of the parties was otherwise, the court will give effect to such intention. [Was there a written (or at least oral) agreement that expressed the parties’ “intent”? Then that intent can “appear” at court. But if the transaction takes place “wordlessly,” no mutual intention will “appear” and the court can do as it pleases. LESSON:
Control
each of your transactions with a written contract or other evidence of your intention.] So, if there are separate demands, part of which are secured and part not secured, the application will be made on those not secured.
Langdon v. Bowen,
46 Vt. 512;
Field v. Holland,
6 Cranch (U. S.), 8. See
Vance v. Monroe,
4 Gratt. (Va.) 53 ;
Stamford Bank v. Benedict,
.
15 Conn. 438 ;
Chester v. Wheelwright,
15 id. 562 ;
Callahan v. Bowman,
21 Ala. 246 ;
Campbell v. Vedder,
1 Abb. Ct. App.. (N. Y.) 295 ; S. C., 3 Keyes, 174. [The author implies that every “security” is an
expression
of intent sufficient to control the court of equity. But those demands which are not “secured” by some written (or remotely, oral) agreement, may be “unsecured” and therefore subject to the discretion of the court of equity. I.e., the “secured” debts are probably “secured” by means of an
express agreement
and therefore subject to the jurisdiction of the courts of law. The “unsecured” are probably without an express statement of intent and therefore subject to equity jurisdiction.]
A creditor has no right to apply a general payment to an item of account which is illegal, as a claim for usurious interest ; but if the debtor himself apply the payment to an illegal demand, he cannot afterward revoke it.
Bohan v. Hanson,
11 Cush. 44 ;
Duncan v. Helm
22 La. Ann. 418 ;
Bancroft v. Dumas,
21 Vt. 456 ;
Ayer v. Hawkins,
19 id. 26 ;
Caldwell v. Wentworth,
14 N. H. 431 ;
Treadwell v. Moj
,
re,
34 Me. 115. So, application of a general payment may be made to a debt within the statute of frauds.
Haynes v. Nice,
100 Mass. 327, or to a debt barred by the statute of limitations.
Jackson v. Burke,
1 Dill. 311;
Ramsay v. Warner,
97 Mass. 8.
[Hmph. The creditor can’t apply a debtor’s payment to an illegal “item”—but the debtor can. What does that mean? The creditor (and court of equity) can’t force the debtor to pay an illegal debt, a debt based on fraud, or a debt now “discharged” by a statute of limitations. However, if the debtor agrees to pay (or is perhaps tricked into paying) such debt “voluntarily” (without express objection), the debtor cannot later seek recovery of the sum “paid” based on the debts illegal or unenforceable nature.]
Payments by a debtor upon a running account made partly before and partly after his discharge in bankruptcy, of which proceeding the creditor had no notice, may be applied by the latter to the items first due in the account.
Hill v. Robbins,
22 Mich. 477.
[Thanks to bankruptcy, a debtor can’t be compelled to pay some of his debts. But if the bankrupt debtor nevertheless later volunteer to pay such “discharged” debts, he cannot later revoke those “unnecessary” payments.]
Where a member of a firm is indebted, and the firm owe the same person, a payment made by such partner will be presumed to be on his own account.
Johnson v. Boone,
2 Harr. (Del.) 172 ; see
Fairchild v. Holly,
10 Conn. 175 ;
Sneed v. “‘Wester, 2
A. K. Marsh. (Ky.) 277. [What if “ALFRED ADASK” owed money to the IRS that was “paid” by “Alfred Adask”? What if “Alfred” designated his payment to be for
his own
account (if any) rather than allow it to be presumed made for “ALFRED”?] But if the payment be of money belonging to the firm, it must be appropriated to the discharge of the partnership debt.
Thompson v. Brown,
Moody & M. 40. [Are Federal Reserve Notes “money belonging to the
firm
” (Federal Reserve)? If so, must any debts paid in FRNs be applied to the “firm’s” debts rather than that of the payor?]
The presumption that where a variety of transactions are included in one general account, the items of credit are to be appropriated to the items of debit in order of date in the absence of other appropriation. But such presumption may be rebutted by circumstances of the case showing that such could not have been the intention of the parties. See
City Discount Co. v. McLean,
L. R, 9 C. P. 692 ; S. C., 10 Eng. R. (Moak’s ed.) 363. But such presumption is not rebutted by the fact that the debit items are for goods sold on condition that they shall not become the property of the purchaser till paid for, even though a memorandum of the condition is entered by the seller in his books containing the account.
Crompton v. Pratt,
105 Mass. 255. [The implication is that the seller’s self-memorandum records alone are insufficient to rebut the presumption. For a successful rebuttal, there must apparently be evidence that
both
sides agreed/intended a result that defeats the presumption. Out of the mouths of two or three . . . .] For a full discussion of the subject of appropriation of payments, see ” Payment.”
§ 5. Agency
. It is the
duty
of an agent, where the
business
in which he is employed
admits
of it, or
requires
it,
to keep regular accounts of all his transactions on behalf of his principal
, not only of his
payments and disbursements
, but also of his
receipts
; and to
render such accounts to his principal at all reasonable times
, without any suppression, concealment, or overcharge. Story on Agency, § 203 ;
Eaton v. Welton,
32 N. H. 352. See
.Haas v. Damon,
9 Iowa, 589. This
duty is strictly enforced in courts of equity
; the most important
agencies
falling under the ,cognizance of such courts being those of
attorneys, factors, bailiffs, consignees, receivers, and stewards
. In most of these agencies, there are
mutual accounts
between the parties; but, even where the account is on
one side only
, the
relation
naturally gives rise to great personal
confidence
, and
in cases of contro
versy the principal is seldom able to establish his rights, or to ascertain the true state of the accounts, without resorting to equity to compel a discovery by the agent. See 1 Story’s Eq. Juris., § 462;
Ormond v. Hutchinson,
13 Ves. 53 ;
Taylor v. Tompkins,
2 Heisk. (Tenn.) 89 ;
Massey v. Davies,
2 Ves., Jr., 318. See
Rich v. Austin,
40 Vt. 416. [Yes, indeed. But if you’re not such an “agent,” or fiduciary, then there is no CONFIDENTIAL RELATIONSHIP and therefore a right of discovery may not exist in equity. Point: As a defendant, if you can deny the underlying “relationship” with the account and/or plaintiff, the court of equity may be hosed.]
So, where the accounts are too complicated to be dealt with in a court of law, a court of equity will entertain jurisdiction.
Hill v. South Staffordshire Railway Co.,
11 Jur. (N. S.) 192. [We’ll have to find out exactly what “too complicated” means. I’m beginning to suspect that “too complicated” means that the gov-co (plaintiff) may have an account relationship with “ADASK” wherein “Adask” acts as fiduciary. In order to settle the “ADASK” account, the gov-co must first deal with the fiduciary “Adask” who represents (and perhaps even thinks he
is
) “ADASK”. If that suspicion is correct, it is the intervening presence of the
fiduciary
“Adask” that “complicates” the account and subjects it to equity rather than law. Without the intervening fiduciary (Adask), the account would be strictly between the gov-co (plaintiff) and the alleged defendant “ADASK”. The two sides being “independent” and not “related” by means of a “3rd party” fiduciary (“Adask”), the transaction would not be “complicated” and thus left to determination in a court of law.] The mere relation of principal and agent does not, however, entitle the principal to come into a court of equity for an account, if the matter can be fairly tried at law (1 Story’s Eq. Juris., § 462,,a;
Barry v. Stevens,
3 Beay. 258); nor can an agent maintain a bill [in equity] for an account solely upon the ground that he was entitled to commissions for his services. 1 Story’s Eq. Juris., § 462, a. See
_Haskins v. Burr,
106 Mass. 48;
Hargrave v. Conroy,
4 C. E. Green (N. J.), 281 ;
Maxon v. Bright,
L. R., 4 Ch. App. 292. And, in general, a bill will not lie by an agent against his principal, for an account, unless some special ground is laid, as the incapacity to get proof unless by discovery.
Dinwiddie v. Bailey,
6 Ves. 136 ;
Wilson v. Hallett,
4 Sandf. (S. C.) 112. But in the case of stewards, a discovery from his principal is ordinarily necessary, for, as has been said, “the nature of this dealing is, that money is paid in confidence, without vouchers, embracing a great variety of accounts with the tenants ; and nine times in ten it is impossible that justice be done to the steward,”without going into equity for an account against his principal. See 1 Story’s Eq. Juris., § 462, note ;
Lord Hardwicke v. Vernon,
4 Ves. 411, 418, note.
It has been held that an agent cannot be called on for an accounting in chancery, where the agency was for a single transaction, as a single consignment, or the delivery of money to be laid out in the purchase of an estate.
Coquillard v. Suydam,
8 Blued. (Ind.) 24 ;
Navulshaw v. Brownrigg,
7 Eng. Law & Eq. 106. But although a suit at law may be often maintainable in such cases, the party frequently has an election of remedy, and may resort to a court of equity for the attainment of justice.
Scott v. Surman,
Willes. 405 ;
Zetelle v. Myers,
19 Gratt. (Va.) 62. The true source of jurisdiction is the necessity of reaching the facts by a discovery; and having jurisdiction for such a purpose, a court of equity, to avoid multiplicity of suits, will proceed to administer the proper relief.
Post v. Kimberly,
9 Johns. 493;
Porter v. Spencer,
2 Johns. Ch. 171 ;
Ludlow v. Simond,
2 Cai. Cas. 1, 38, 52. See Durant v. Einstein, 5 Rob. (N. Y.) 423 ; 35 How. 223 ; Conyngham’ s Appeal, 57 Penn. St. 474 ; Mason v. Man, 3 Desau. 116; Hale v. Hale, 4 Bumph. (Tenn.) 183.
Cases of account between trustees and
cestuis que trust
[beneficiaries]
come very appropriately within the jurisdiction of courts of equity, and the same general rules are applicable as in other cases of agency. A trustee is not permitted to make the concerns of his trust profitable to himself, nor, on the other hand, is he liable for any loss occurring in the discharge of his duties, in the absence of negligence, malversation, or fraud on his part. See
Quackenbush. v. Leonard,
9 Paige, 334 ;
Slade v. Van Vechten,
11 Paige, 21;
Barksdale v. Finney,
14 Grad. (Va.) 338 ;
Andrews v. Hobson,
23 Ala. 219 ;
Hubbell v. Medbury,
53 N. Y. (8 Sick.) 98; 64 id. 683. The same rules are applicable to cases of guardians and wards, and other relations of a similar character. See 1 Story’s Eq. Juris., § 465.
[I’ve seen other documents that suggest that “profit” is a benefit. Thus, the man cannot lawfully make a profit/benefit while working as a trustee.
I’ve also seen where “profits” are taxable. This suggests that a trustee who makes no profit is not liable to pay income taxes. However, a trustee who acquired a profit (wealth greater than the standard personal deduction?) would be subject to income taxes.
I can’t put my finger on it,
but somewhere in all this conjecture I feel a hint that a proper understanding of one’s role as fiduciary (or non-fiduciary) might preclude any obligation to pay income taxes.
Can I (“Adask”) somehow enter into a contract with “ADASK” to represent it at the rate of, say, $100/hour? Or perhaps 1/10th ounce of gold per hour? Instead of volunteering to act as fiduciary for free, could I contract to act as “ADASK’s” agent? If I could contract to act as “ADASK’s” fiduciary, I’m not sure that I’d have any income tax liability.
The problem with this conjecture is Who has authority to agree on the part of “ADASK” that should be paid $100 or even $1,000 per hour to serve as its fiduciary? The SSA??]
In all cases where it is necessary that an accounting should be had to ascertain the rights of tenants in common (Darden v. Cowper, 7 Jones’ L. [N. C.] 210; Field v. Craig, 8 Allen, 357 ; Leach v. Beattie, 33 Vt. 195), joint-tenants, partners or part-owners of ships (McClellan v. Osborne, 51 Me. 118 ; Dyckman v. Valiente, 42 N. Y. [3 Hand] 549), equity has jurisdiction. But see Pico v. Columbet, 12 Cal. 414. Such cases involve peculiar agencies similar to those of bailiffs, or managers of property, and require the same operative power of discovery, and the same interposition of equity. 1 Story’s Eq. Julie., § 466; Strelly v. Wilson, 1 Vern. 297. This subject will be further discussed under subsequent heads.
§ 6. Apportionment. Most cases of apportionment involve matters of account, in which a
discovery
is essential for the purposes of justice [Note that “discovery” is one of the hallmarks of an action for account. Note also, that modern court procedure is largely dependent on “discovery”. These two observations may be only coincidental, but they may also server to prove that the modern “legal process” is largely based on “account”.]; but aside from this
ground
of jurisdiction, there are other distinct grounds upon which courts of equity will exercise jurisdiction in such cases, in order to avoid circuity and multiplicity of actions. [Settle everything—including issues at law—in a single, equitable proceeding.] As it regards apportionment in its application to contracts generally, the rule of the common law is, that an entire contract is not apportionable, unless specially stipulated by the parties, and courts of equity have very generally adopted the maxim,
aquitas sequitur legem
.
See 1 Story’s Eq. Juris., § 470;
Granger v. Bassett,
98 Mass. 462;
Holmes v. Taber,
9 Allen, 246. Thus, in the familiar illustration, where the mate of a ship engaged for a voyage at a certain sum agreed upon therefor, and died during the voyage, it was held, that at law there could be no apportionment [discretion in balancing of the account? I.e., the account AT LAW is fixed?] of the wages.
Cutter v. Powell,
6 T. R. 320. Where, however, equitable circumstances [uncertainty] 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. Webb,
2 Bro. Ch. 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 any agreement for a return of any part of the premium, 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, 696;
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. Stevenson,
13 Abb. N. S. (N. Y.) 196, 202. In respect to their apportionment in certain cases, the same rule is not applicable to rents
service
and rents charge. If one having a rent service purchase a part of the land out of which it issues, it extinguishes the rent
pro rata,
and leaves it good for the balance. So if he release a part of his rent, the residue is not discharged. 2 Washb. Real Prop. 17 ;
Ingersoll v. Sergeant,
1 Wharf.. (Penn.) 337; Bac. Abr., Rent M.
[What th’ heck are a “rents service” and “rents charge”? I’ve never before heard those terms. Needs research.]
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 prevents 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;
Van Rensselaer v. Chadwick,
22 N. Y. (8 Smith) 32 ; S. C., 24 Barb. 333;
Cruger v. McLaury,
41 N. Y. (2 Hand) 219; S. C., 61 Barb. 642.
[Then any “operation of law” (which I believe occurs primarily or even strictly in equity) cannot extinguish a debt—only discharge??
Clearly, I do not yet understand this concept of “apportionment”.]
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. Chadwick,
22 N. Y. (8 Smith) 32.
In every lease of land, the lessor is so far bound, by implication, 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. Eq. (N. C.) 350. So if the lessor be evicted [foreclosed??] of a part of the land demised, by a stranger on title paramount, it operates as a suspension of the rent
pro Canto,
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 apportionment of rent where the premises out of which 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;
Reed v. Ward,
22 id. 144.
A rent payable in produce and services is apportionable
.
Van Rensselaer v. Gifford,
24 Barb. 349.
§ 7. Contribution
. In order the more effectually to
do justice to all the parties [“justice” = “balancing” of each party’s interest in the “account”??]
, courts of equity
frequently
assume jurisdiction 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. McCurdy,
7 J. J. Marsh. (Ky)
559; Veile v. Hoag,
24 Vt. 46;
Wayland v. Tucker,
4 Gratt. (Va.) 268;
Couch v. Terry,
12 Ala.
225.
[Implication: If you’re making “contributions,” you can’t challenge equity jurisdiction even if your contributions are other made at law (with lawful money?).]
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 nature of the
relation
between the
parties
.
Campbell v. Hesier,
4 Johns. Ch. 334 ; S. C., 6 id. 21;
Aspinwall v. Sacchi, 57 N.
Y. (12 Sick.) 331, 335;
White v. Banks,
21 Ala. 705 ;
Russell v. Faller, 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. Nutt,
4 Pet. (U.S.) 184;
.Peck v. Ellis,
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, knowingly or wantonly, a
wrong
.
Moore v. Appleton,
26 Ala. 633 ;
Armstrong County v. Clarion County,
66 Penn. St. 218; S. C., 5 Am. R. 368;
Acheson 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 mortgage, 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.
[Given that full faith and credit of the people or citizens of the United States is apparently pledged to repay the national debt, is our income tax a “compelled contribution” based on the “common burden” of U.S. citizens/persons to repay te gov-co’s debt? But if you can establish that you are not a U.S. person/citizen, are you still obligated to “contribute” towards the national debt? What if one successfully revokes any presumption or reality that he’s a fiduciary for the “United States”? Once one essentially reestablishes his “independence” from any and all fiduciary relationships, he becomes exempt from accounts in equity or obligations of contribution.]
To ascertain the relative values of each is, however, a matter attended with much difficulty; [This “difficulty” sounds a lot like a graduated income tax’s attempt to impose “fair” obligations of contribution on those who share a “common burden” of paying the national debt, but have unequal incomes.] and without a resort to a court of equity in such a case, the most serious embarrassments 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 average
.
This, in the sense of the maritime law, means a general contribution, that is to be made by all parties in interest, toward a loss or expense, which is voluntarily 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. Jude., § 490 ;
Stirling v. Forrester,
3 Bligh, 590, 596 ;
Louisville Ins. Co. v. Bland,
9 Dana (Ky.), 147 ;
Nimic v. Holmes,
25 Penn. St. 371.
[“
Natural
law”?! “Natural law” implicates the Declaration of Independence and the “natural law” of our Father YHWH Elohym.]
The circumstances under which this equity arises are where a ship
[vessel?]
and cargo are in
imminent peril
, and
a portion is intentionally 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 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 the 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 intentionally 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.) 624; Williams
v. Suffolk Ins. Co.,
3 Sumn. 513;
Crockett v. Dodge,
3 Paid. (Me.) 190.
[The previous implies that the “obligation of contribution” might be preempted by a claim based on a “right to life” or “liberty”. Of course, only living men could make such claims; not legal fictions and probably not “persons”.]
The
rates
of contribution are generally settled by
arbitration
, but the
parties cannot be compelled to refer
[to arbitration?]
, and may have recourse to an
action at law
or a
suit in equity
. Adams’ Eq. 271;
Sturgess v. Cary,
2 Curtis (C. C.), 69;
Gillett v. Ellis,
11 Ill. 579. A court of
equity
affords a
safe, convenient
, and
expeditious remedy
; and it is accordingly the
customary
mode of remedy in
all
cases, where a
controversy
arises, and a
court of equity exists in the place
, capable of
administering
the remedy. 1 Story’s Eq. Juris., § 491 ;
Merithew v. Sampson,
4 Allen, 192 ;
Hallett v. Boy
-
Wield,
18 Ves. 190, 196.
The beneficial effects of equity jurisdiction over matters of account may also be seen in cases of contribution between
sureties
.
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, 216; S. C., 15 Am R. 475. But 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. Sproul,
5 J. J. Marsh. (Ky.) 264. And the
right exists notwithstanding the sev
eral sureties sign without any communication [notice] with each other.
Norton v. Coons,
6 N. Y. (2 Seld.) 33 ; S. C., 3 Denio, 130 ;
Chaffee v. lones,19
Pick. 260, 264. But he can only call for contribution when he has paid more than his proportion of the debt, and then for no more than the excess.
Rutherford v. Branch Bank,
14 Ala. 92 ;
Lytle 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. .Tewett,
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;
Pearson v. Duckham,
3 Litt. (Ky.) 385. Or must show that he has used due diligence, without effect, to obtain reimbursement.
McCormack v. Obannon,
3 Muni’. (Va.) 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 operation 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 liability to the creditor.
Camp v. Bost2oick,
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 degree of obligation. It is not founded upon the contract of suretyship, 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 contribute in case of unequal payments by co-sureties. Ib.
Russell v. Pallor, 1
Ohio St. 327. But equity resorts to no such fiction. It equalizes burdens and recognizes and enforces the reasonable expectations [not “rights” per se] 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 principal, the statute of limitations, nor the death of a party, can take it away.
Camp v. Bostwick,
20 Ohio St. 337; S. C., 5 Am. R. 669 ;
Howe v. Ward,
4 Greenl. (Me.) 195 ;
Bachelder v. Fiske,
17 Mass. 464 ;
Boardman v. Paige,
11 N. H. 431 ;
Aspinwall v. Sacchi, 57 N.
Y. (12 Sick.) 337, 338.
In some of the 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
Henderson v. McDuiree,5
N. H. 38 ;
Mills v. Hyde,
19 Vt. 59 ;
Aiken 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 principal is insolvent, will restrain a surety from fraudulently stripping himself of his property, so as to throw the burden of the debt on his co-surety. See
Bowen v. Hoskins,
45 Miss. 183.
[Our gov-co is
insolvent
and technically bankrupt and has been for at least a generation. Is this the basis for relying on the “full faith and credit of the American people” to back the value of our “dollars” and/or national debt? Are Whee duh Pee-pul (“taxpayers”) deemed “co-sureties” for the national debt? What happens if We terminate or deny our role as co-sureties? ]
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. Spraker,
id. 182 ; see, also, title Liens.
[Does an IRS “notice of lien” implicate an account to be balanced/settled in equity?]
-
§ 9.
Rents and profits
. Equity has jurisdiction in
many
cases of account, pertaining to
rents and profits
,
not only
when they arise from
privity of contract
, but also when they arise from
adverse claims and titles, asserted by different persons
.
[When two people claim the same title to the same property, that implicates equity?]
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.
[Do the absence of a republican form of government or lawful money, or some endless “national emergency” or “national bankruptcy” constitute “special circumstances”? If so, virtually everything is under a “special circumstance” that allows courts of equity to interfere with all accounts (including at law), contracts, and even torts (infra).]
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
tescue,
3 Atk. 129 ;
Carey v. Burtie,
2 Vern. 342. So, if there is a trust estate, and the
cestui que trust
[beneficiary]
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 controversy, 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.
Ulaussen v. Lafranz,
4 Greene (Iowa), 224.
[At least historically, the issues of LAND would not be decided in equity. Land, almost always, implicates LAW.]
§ 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
(Irierson 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 without reference to the question whether or not an injunction will lie ; or whether or not there is a remedy at law. Id. 285.
ARTICLE II.
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 necessary
;
2. Where on
one side there are demands
, and on the
other mere payments or set-offs
, and
no discovery is sought or required
.
Lafever v. Bellmyer, 5 W.
Va. 33 ;
Gloninger v. Hazard,
42 Penn. St. 389 ;
McMartin v. Bingham,
27 Iowa, 234;
Haywood v. Hutchins,
65 N. C. 574.
[If those general principles still apply, it appears that there is no equity jurisdiction over an account where there is no
discovery
. This seems consistent with a strategy that’s been promoted by some “patriots” that in response to a claim, you admit/confess all the details alleged by the plaintiff. If you confess all of the plaintiff’s allegation of details of an account (perhaps with a “conditional acceptance”), there would be no additional requirement for
discovery
. Without discovery, no court of equity.
But can our current gov-co go to courts of LAW? I’m convinced gov-co doesn’t want to go to courts of LAW; I suspect that they may be even ben unable to do so. If I’m right, if you can eliminate any cause for discovery, you might be able to completely stop a proceeding in equity. And if gov-co is unwilling or unable to go to a court of law, you might thereby stop the entire action of account.]
In these cases, there is not only
a complete remedy at law
, but there is
nothing requiring the peculiar aid of equity, to ascertain or adjust the claim
. See Id.;
Foster v. spencer,
2 Johns. Ch. 171;
Durant v. Einstein,
35 How. 223, 241; S. C., 5 Rob. 423.
[The “claim” is based on an “account”? Surely, that’s true sometimes. Is it true
always
?
If all modern claims were based on an “account,” then it might follow that the 12(b)(6) motion for summary dismissal for “failure to state a claim for which relief can be granted” could mean that the plaintiff had 1) failed to specify some account-relationship as the basis for his claim; or 2) had failed to demand DISCOVERY as part of their original PETITION!
Damn. No discovery
à
no equity jurisdiction. This implies that if the only available courts are courts of equity, any failure to demand discovery might cause the plaintiff’s case to be dismissed.
More, the word “relief” (as in “failure to state a claim for which
relief
can be granted”) typically implicates equity jurisdiction. Courts of equity can provide “relief,” but I’m not sure that the same can be said for courts of law.
Suppose courts of law can’t provide “relief”. Suppose you (as plaintiff) initiate a lawsuit based on a claim based on an “action of account”. Suppose you neglect to expressly declare that the defendant stands as fiduciary in relation to you and has breached his fiduciary obligation to you. That could mean that your “action of account” would have to be heard
at law
and could not be heard in a court of equity.
Thus, by making a claim (action of account?) without express reference to a fiduciary relationship, the plaintiff may be precluded from proceeding in a court of equity. Thus, such action on account could be rejected
in equity
for “failure to state a claim [in equity] for which relief can be granted.”
The problem with this theory is that I’ve only rarely seen a court case where the plaintiff expressly claims the existence of fiduciary relationship with the defendant. Thus, it would seem that virtually all other court cases could be dismissed under Federal Rule of Civil Procedure (FRCP) 12(b)(6) for “failure to state a claim for which relief can be granted”. But the courts (of equity) routinely proceed to administer cases that I now believe are “actions of account” without either party claiming the existence of a fiduciary relationship.
The fact that 99% of all cases proceed without express declaration of a fiduciary relationship between the parties would seem to refute my theory. But, in fact, courts of equity have the discretionary power to “find” an “implied trust relationship” (which is not enforceable) and “construe” it into a “constructive” trust (which is enforceable). Thus, the judge in a court of equity has the discretionary power to “find” the existence of a fiduciary relationship (if the judge so pleases) in virtually any case before him. If the judge in equity “finds” an unexpressed but
implied
fiduciary relationship between two parties to an “action of account,” that might be sufficient to administer that action of account in equity rather than at law. If the judge does not find an implied fiduciary relationship in an action of account, the case might proceed at law, but not in equity.
For example, whenever the IRS or other governmental entity tried to sue a defendant on an “action of account” in a court of equity, the judge might routinely “find” an implied trust relationship sufficient to try that “action of account” in equity. But if some peon (like you or me) tried to sue the gov-co on an “action of account,” the judge might routinely “find” that there is no implied trust relationship between the parties and therefore refuse to hear the peon’s case.
And if a relatively poor and ignorant “peon” tried to sue a relatively rich and knowledgeable “peon” on an action of account, and if the poor peon failed to expressly declare the existence of a fiduciary relationship between himself and the rich peon; and if the rich peon hired a lawyer to make a 12(b)(6) motion for dismissal for “failure to state a claim for which
relief
can be granted”—then that 12(b)(6)
might
be an express code whereby the defendant essentially declared “there’s no evidence of a fiduciary relationship” and therefore this court of equity has no jurisdiction to grant any “relief”.
My chain of logic (actually, conjecture) is fairly long. If an link is defective the conclusion is defective.
But 12(b)(6) dismissals have perplexed me for at least a decade. I’ve advanced one or two theories in the past that might explain what “failure to state a claim for which relief can be granted” really means. But this is the first time that I think that I might have roughly deduced the real meaning of the FRCP 12(b)(6) dismissals. I think that maybe (30% chance) the 12(b)(6) motion just might be similar to saying “at arm’s length”. I think that 12(b)(6) may be a way of implicating saying the plaintiff failed to expressly declare the existence of a fiduciary relationship and/or implicitly denying that such fiduciary relationship exists.
I won’t say that analysis is valid, and I wouldn’t recommend that any of you trust it. But it feels so good to me (my gut is goin’
yeah, yeah, yeah!)
that I’m
excited
about the possibility.
I may be leaping to irrational conclusions, but I’m saying again that (for now), I’m about 98% convinced that “actions of account” are the fundamental mechanism that animate virtually all court cases. If I’m even partially right, we’re going to “take a big bite out of crime” (gov-co).]
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 [not “complicated”?] by the verdict of a jury.
Lesley v. Bosson,
39 Miss. 868; [I’m not sure what constitutes a “
special
contract,” but it’s again apparent that any carefully drawn
contract
that provided the
terms
of tender—and especially the
extinguishment
of the debt as a one-time event (rather than one of several transactions in a “running account”)—it may be possible to absolutely avoid any equity jurisdiction. If gov-co can’t/won’t go to courts of law, defendants may be able to avoid courts of equity by drafting “special” contracts for their transactions.] So, the mere relation of creditor of the defendant is not, of itself, sufficient to entitle the plaintiff to an accounting.
Salter v. Ham,
31 N. Y. (4 Tiff.) 321. [I.e., the author presumably means that the debtor/creditor relationship could be established at law by contract, but without an associated
fiduciary
, there may not be grounds for taking the account into a court of equity.] 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.
illowatt,
4 id. 142 ;
.Powle v. Latorason,
5 Pet. (U. S.) 494 ;
Poage v. Wilson,
2 Leigh (Va.), 490 ;
Olioer v. Palmer,
11 Gill. & 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.
Bolling v. Bolling,
5 Munf. (Va.) 334 ;
Mooers v. White,
6 Johns. Ch. 360 ; or by the pendency of another suit covering the same matters.
Boyd v. Hawkins,
2 Dev. (N. C.) 195 ;
Herten 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 (Va.), 537; or by a previous voluntary accounting. [Again, if the defendant gave a full account of all information relevant to the account, there’d be no need for
discovery
and therefore, apparently no ground for equity.] 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 exercise of a sound discretion on the circumstances.
Rayner v. Pearsall,
3 Johns. Ch. 578.
CHAPTER V.
OF ACTIONS RELATING 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 performed, and materials found and provided, and the use of such property hired and returned
. See, generally,
Merrill v. Ithaca & Owego R. B. Co.,
16 Wend. 586 ;
Terrill v. Beecher,
9 Conn. 344 ;
Clark v. Savage,
20 id. 258 ;
.Fry v. Slyjteld,
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 v. 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.
Nedvidek 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
values
, but
damages
which can be
rendered certain only by convention 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.
[Gold & silver coins are units of VALUE. Legal tender is a unit of ACCOUNT. . . . While “damages” may not be, of themselves, “matters of
book
account,” earlier text indicates that if an account of other basis can be found as ground for equity jurisdiction, the court of equity can then hear a variety of other issues that are not intrinsically subject to equity. This
suggests
that even though “damages” may not be a “matter of book account,” that once equity is invoked on some other ground, the court of equity can consider and decide the amount of “damages”. ]
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
land
.
Case v. Berry,
3 Vt. 332;
[Again, suggestion that whenever LAND is involved, equity may not be directly applicable. Law of the LAND as opposed to the law of the sea? Is there any “land” in a fictional or territorial state like “this state”? On the other hand, if you can establish that you act “on the land” (some say “soil” or “earth”) within the jurisdiction of The State, you might add another line of defense against accounts and equitable jurisdiction.]
a
balance due
on a
promissory note
,
Stevens v. Damon,
29 id. 521;
damages
for a
tort
,
Peach v. Mills, 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.
[Apparently, even though a “special contract” is
partially
“executed,” and therefore some “balance” remains that might ascertained by the courts, the courts of equity will still not assume jurisdiction directly over such “special contract”.
Black’s
8th defines “special contract” as “1. See
contract under seal
. 2 A contract with peculiar provisions that are not ordinarily found in contracts relating to the same subject matter. 3. See
express contract
.”
The previous definition suggests: 1) if a contract bears a “seal”; 2) includes “peculiar provisions” (like payment in gold or silver rather than legal tender or a declaration that payment in legal tender will extinguish the debt as “paid in full”?); or 3) must be specifically expressed—it might
not
be subject to equity.
Black’s
8th’s definition of “express contract” is brief: “A contract whose terms the parties have explicitly set out.—Also termed
special contract
. Cf.
implied contract
.”
Thus, a express contract must be 1) explicit; and conversely, 2) not implied. No presumptions of implications in an express/explicit/special contract.
I can only guess at the “peculiar provisions” that might constitute a “special contract”. Again, these might include 1) use of lawful money; 2) declaration of venue within The State rather than “in this state”; 3) the intent to extinguish the debt (and thus account) by the payment of legal tender; etc.
Black’s
8th’s definition of “contract under seal” is more lengthy:
“A formal contract that
requires no consideration
and has the
seal
of the
signer
attached
. • A contract under seal must be in
writing
or
printed
on paper or parchment and is
conclusive
between the parties when
signed, sealed
and
delivered
. Delivery is made either by
actually
handing it to the other party (or party’s representative) or by
stating an intention that the deed be operative even though it is retained in the possession of the party executing it
. Modern
statutes
have
almost eliminated
the special effects of a sealed contract.—Also termed
sealed contract; special contract;
deed
;
covenant
; specialty; specialty contract;
common-law
speciality
. See SEAL.
“‘The
only
formal contract of
English
law is the
contract under seal
, sometimes also called a
deed
and sometimes a
specialty
. It is the only
formal
contract
, because it derives its
validity
neither from the
fact of the agreement
, nor from the
consideration
may exist for the promise of either party, but from the
form
in which it is expressed.’ William R. Anson, Principles of the Law of Contract 82 (Arthur L. Corbin ed. 3d Am. Ed.
1919
).
“‘Contracts under seal also bear little resemblance to ordinary contracts, although here at least the
liability
is based on a
promise
. A contract under seal, that is to say a
deed
, . . . is a
written
promise
or set of promises which derives its
validity
from the form, and the
form alone
, of the executing instrument. In point of fact, the ‘form’ of the deed is nowadays surprisingly
elastic
. The
only necessities
are that the
deed
should be
intended
as such, and should
be signed, sealed
, and
delivered
. The sealing, however, has now become largely a
fiction
, an
adhesive wafer
simply
being
attached
to the document in place of a
genuine
seal. Similarly, ‘
delivery’
is not literally necessary, provided that there is a
clear intention
that the
deed
should be
operative
.’ P.S. Atiyah,
An Introduction to the Law of Contract
31 (3d ed. 1981.”
I’m not going to dissect the definitions of “contract under seal,” and “seal” at this time. But both definitions are critical to understanding the criteria for a contract intended to avoid equity jurisdiction.
But virtually every word I’ve highlighted in bold text in the previous definitions indicate “criteria” to be recognized and implemented in drafting a “contract under seal” that can avoid equity.
Finally, note that the changes from “traditional” contracts under seal to the modern versions based on statutes probably reflect the changes from The State to this state. More than likely, a “contract under seal” that’s drafted “in this state” will be ineffective at stopping equity jurisdiction. Instead, in order to draft an effective “contract under seal,” you’ll probably have to use the “traditional” requirements and specify that the “deed” is executed within “The State” of the Union.]
-
§ 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 Vt. 507.
[Are modern “charges” (“You are charged with 3 counts of 2nd-degree larceny”) made upon “books of account”? If so, are these “books of account” admissible evidence or mere business records (hearsay) without someone to testify to having reason to make that entry/charge?]
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.
[If “books of account” still have no specific form, then any number of “forms” (such as a stack of sequentially number traffic tickets, or case file numbers, etc.) could be “books of account” without any suspecting that was the case.]
So, almost
any series of figures, abbreviations and words, which can be explained [argued?] into a signification, will do for particular charges [These “charges” sound a lot like premises for arguments rather than “evidence”. The implication in all of this is that the “charges” seem to flow from a “book of account”. This implies that IF THERE IS NO ACCOUNT, THERE SHOULD BE NO VALID ENTRY IN THE “BOOK OF ACCOUNTS” AND THERE MIGHT THEREFORE BE NO VALID “CHARGES”. Deny or destroy the “account”
relationship
to invalidate the “charges”?]
, if conformable to the
party’s ordinary course of making his entries
, the
language he speaks
,
his degree of education
, and the nature of his
business
.
Rowland v. Burton,
2 Harr. (Del.) 288;
Stroud v. Tilton,
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 Adm’ r v. Petrie,
1 Nott & M. (S. C.) 130. Or a charge by a physician, of thirteen dollars, for medicine and attendance in curing the whooping cough.
Hughes v. Hampton,
2 Conet. 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 regard to the
proof
of books of account are far from being uniform. Generally, before the
books of the party can be admitted in evidence
, they are to be submitted to the
inspection of the court
, and if they
do not appear to be a register of the daily business of the party, and to have been honestly and fairly kept, they are excluded
. Churchman v. Smith, 6 Whart. (Penn:) 106.
[These are requirements within States of the Union. Today’s requirements “in this state” would be different. But if the original requirements were still in place, what do you suppose the odds are that the IRS and/or federal gov-co can produce a set of “books” that have been kept 1) daily; 2) honestly; and 3) fairly? The Inspector General has admitted that the IRS has lost track of BILLIONS of dollars. How accurate do you suppose their “book of accounts” might be?]
If the books appear free from fraudulent practices, and proper to be laid before the jury, then, in many of the States, the party himself is required to make oath, in open court, that they are the books in which the accounts of his ordinary business transactions are usually kept. See Taylor v. Tucker, 1 Kelly, 233; Hale v. Ard, 48 Penn. St. 22 ; Funk v. Ely, 45 id. 444 ; Frye v. Barker, 2 Pick. 65 ; Bassett v. Spofford, 11 N. H. 167 ; Rowland v. Burton, 2 Harr. (Del.) 288; Fitzgibbon v. Kenny, 3 id. 317 ; Kitchen v. Tyson, 2 Murph. (N. C.) 314 ; Foster v. Sinkler, 1 Bay. (S. 03 40; Nickerson v. Morin, 3 Wis. 243. [Note that the “book of accounts” must be the “book” of THE real party in interest. Only HE can swear to the authenticity of
his
book of accounts. That’s easily understood in simpler times when most businesses were sole proprietorships owned by a single living man. Today, when businesses are almost all corporations, and usually so large that no single individual can be easily identified as both the real party in interest and “bookkeeper” for the “book of accounts,” WHO can swear to the legitimacy of any particular account or book of accounts? Without that OATH, the book of accounts is just a business record (hearsay) and inadmissible as evidence, but probably admissible as a premise in an argument. The argument would be moot if the “account-relationship” were effectively denied. Similarly, if the premise (accurate book of account) were controverted with evidence of systemic inaccuracy, the premise might also be defeated.] In New York the rule is, that to render books of account competent evidence, the party [real party in interest (“RPIN”) to the “account”] must prove that during the period that the charges were made, he had no clerk ; that some of the articles or work were delivered or performed ; that the books are the account books of the party, and that he keeps correct accounts. Vosburgh v. Thayer, 12 Johns. 461 ; Tomlimon v. Borst, 30 Barb. 42 ; Stroud v. Mon, 3 Keyes, 139 ; S. C., 4 Abb. CL App. 326. [If those principles were still in effect, virtually no company or government with an in-house data entry clerk or “bookkeeper” could prove that the “book of accounts” was valid. In today’s business world, the books of accounts are almost certainly not admissible as competent evidence because the true RPIN can’t be identified as a single man and even he he could, he’s almost certainly not the guy who personally kept the “book of accounts”.] And it now seems to be the settled law of the State, that parties may introduce books of account in evidence, and a party may supply, if he can, the preliminary proof of the correctness of the books by his own oath, whenever it is made to appear that the party had no clerk; or, if he had one, that the clerk was dead. Burke v. Wolfe, 6 Jones & Spen. (N. Y.) 263. [What if the clerk was a decedent like “ADASK”? Would the clerk’s status as a legal fiction or account satisfy the old rule concerning the “party’s oath” when the “clerk was dead”? This is pure, improbable conjecture. But it is intriguing to speculate as to whether a business system (like “this state”) might overcome the requirement to prove the validity of “business records” (books of account) if all the data entry clerks were deemed to be legal fictions/decendents.]
For a full discussion of this subject, which more appropriately falls under the head of
Evidence
, see 2 Wait’s Law & Pr. 436
et seq.
ARTICLE II.
ACTIONS UPON OR RELATING TO AN ACCOUNT STATED.
Section 1. An account stated. In general
. An
open
account
is defined to be one in which
some item
of the contract is
not settled
by the parties, whether the account consists of one item or of many.
Shward v. Wilkins,1
Ala. 62 ;
Goodwin v. Harrison,
8 Ala. 438. But a
stated
account
is an
agreement between the parties
to an account, that
all the items are true
.
Stebbins v. Niles,
25 Miss. 267. To make a stated account
requires
two parties, the
debtor and the creditor
. There
must be a mutual agreement
between them as to the
allowance and disallowance
of the respective claims, and as to the
balance
as it is struck upon the
final adjustment
of the whole account and demands of both sides. Their
minds must meet
as in making other agreements, and they must both
assent
to the account and the balance as correct.
Stenton. v. Jerome,
54 N. Y. (9 Sick.) 480 ;
Lockwood v. Thorne,
12 N. Y. (1 Kern.) 170 ;
Kock v. Bonitz,
4 Daly (N. Y.), 117. That
the stating of an account is in the nature of a new promise
. See
Holmes v. D’ Camp,
1 Johns. 34 ;
Montgomery v. Ives,
17 Johns. 38 ;
Hoyt v. Wilkinson,
10 Pick. 31 ;
White v. Campbell,
25 Mich. 463. The
balance
of a
stated
account is
principal
, and it
cannot be re-examined to ascertain the items or their character
.
McClelland v. West,
70 Penn. St. 183.
[If the balance of a
stated
account is “principal” and therefore no longer subject to “ascertainment,” there should be no more discovery in equity concerning that “stated account”. So, if a defendant/alleged-debtor were to “state”/agree to the plaintiff’s account before the case were filed into a court of equity, the defendant might preempt the court of equity jurisdiction and compel the plaintiff to sue at law. Again, I don’t think gov-co wants or perhaps can access a court of law.
Implication: One defense against having an account “settled” in a court of equity may be to agree under oath to the “balance”. The problem with this theory is that the account may continue to grow after the defendant agrees to the balance due to interest, penalties, new charges, etc. With more charges, there’d be opportunity for the court of equity to acquire jurisdiction. Therefore to agree to the balance/principal while the charges continued to accumulate would probably be self-defeating.
The more effective strategy would probably be to deny the existence of the account and/or to deny that you occupy the role of fiduciary relative to that alleged account.]
-
§ 2.
Rendering an account
. An account
rendered
is an
admission
, and
prima facie
evidence
against
the
party making
it, but
does not estop him from showing the truth
. It is still open to
explanation
for any
omissions or mistakes
.
Champion v. Joslyn,
44
N. Y. (5
Hand) 653;
Schettler v. Smith,
34 N. Y. Supr. Ct. 17; and see
Williams
v.
Gienny,
16 N. Y. (2 Smith) 389 ;
Daniels v. Wilber,
60 Ill. 526;
Nicholson v. Pelanne,
14 La. Ann. 508 ;
Beebe v. Robert,
12 Wend. 413 ;
Smith v. Tucker,
2 E. D. Smith (N. Y.), 193. So
evidence
of the
reason
why certain
items
do
not appear
in an account rendered is held to be
immaterial
. The party may show the
fact
that such items
exist
, notwithstanding their
omission
from his account, but is
confined
to his
facts
, and his
reasons or motives for the omission are held to be of no importance
.
Champion v. Joslyn,
44 N. Y. (5 Hand) 653.
-
§ 3.
Mutual agreements
. The
conversion
of an
open
account into an account
stated
is an operation by which the parties
assent
[silently; without express objection. This opens the door to
presumption
of assent based on failure to object.]
to a
sum
as the
correct balance due
from one to the other; and
whether this operation has been performed or not
, in any instance,
must depend upon the facts
. That it has taken place,
may appear by evidence of an express understanding
,
or of words and acts, and the necessary and proper inferences
from them.
White v. Campbell,
25 Mich. 463.
[These “proper inferences” are presumptions based on “assent” (failure to expressly object). By means of this “assent” and “proper inferences,” a defendant be falsely presumed to have “agreed” to some “stated account”.]
But in all cases there must be proof, in
some form
, of an express
or implied assent
to the
account rendered
by one party to the other,
before the latter can be held to be so far concluded that he can impeach it only for fraud or mistake
.
Stenton v. Jerome,
54 N. Y. (9 Sick.) 480 ;
Lockwood v. Thorne, 11 N. Y.
(1 Kern.) 170 ; S. C., 18 N. Y. (4 Smith) 288, 290.
No account can be legally stated by persons who are not competent to make a valid contract.
Holmes v. D’ Camp,
1 Johns. 34. And for this reason, an infant is not bound by an account stated, even though he expressly agrees to it.
Trueman v. Hurst,
1 Term R. 40. It is
not necessary that an account should be signed by the parties to make it a stated account
.
Bruen v. Hone,
2 Barb. 586 ;
Lockwood v. Thorne,
11 N. Y. (1 Kern.) 170, 173 ;
Brown v. Vandyke,
8 N. J. Eq. (4 Ha1st.) 795. So, to constitute an account stated, it is not necessary that there should be mutual or cross demands. They may be
all on one side, or consist of charges and the acknowledgment of payment. The simple rendering of the items of an account between the parties, and the striking of a balance, or agreeing upon the amount due, is sufficient ; and upon such a state of fact an action on an account stated may be maintained.
Kock v. Bonitz,
4 Daly (N. Y.), 117 ;
Knowles v. Michel,
13 East, 249;
Hutchinson, v. Market Bank of Troy,
48 Barb. 302 ;
Cobb v. Arundell,
26 Wis. 553.
[This sounds a lot like a situation where the gov-
co might claim that you owe $10,000 and if you don’t expressly deny that the debt is exactly $10,000, it might be presumed from your silence that you’ve agreed by assent to 1) that balance/principal; and 2) your relationship as debtor to the plaintiff-creditor.]
-
§ 4.
Admissions, etc.
When a defendant
acknowledges
his
indebtedness
for a
specific sum
,
being
a
balance of an account
, the court is at liberty to treat it as an
account stated
,
and give judgment for such balance
.
May v. Sloss,
44 Mo. 300.
[Sounds like a summary judgment based on the defendant-debtor’s acknowledgment of the debt and his status as debtor.]
Otherwise,
if the acknowledgment is qualified or conditional
(Evans v. Verity,
Ryan & M. 239); or, the
amount
of the indebtedness is
not specified
.
Lane v. Hill,
18 Ad. & Ell. (N. S.) 252 ;
Kirlon v. Wood, 1
Mood & Rob. 253.
[Conditional acceptance? I accept your claim of a $10,000 debt
on condition
that you produce your title to make that claim? Thus, if you “conditionally accept” the alleged debt, you might be able to prevent
discovery
and thereby avoid equity jurisdiction.]
So,
merely giving
a
note
[FRN??]
for the balance is
not necessarily
an admission of the correctness of an account
(Morton v. Rogers,
14 Wend. 576);
though it is held to be
prima facie
evidence of a
settlement
of accounts between the parties
.
Dutcher v. Porter,
63 Barb. 15 ;
Treadwell v. Abrahams, 15
How. (N. Y.) 219. See
Stiles v. Brown,
1 Gill. (Md.) 350.
[It appears possible that if we “pay” the balance on a debt with lawful dollars (gold/silver coin), that payment might constitute an admission of the “correctness” of the account (probably at law). But if we “discharge” an alleged balance with any kind of
note
(legal tender;
FRNs
? Checks?), that “discharge” would not necessarily constitute evidence or even the debtor’s admission that the account balance was accurate. Instead, if a note were used to discharge a balance, the sum of that balance might still be uncertain—and therefore subject to 1) discovery; and 2) equity jurisdiction.
Implication? Any “payment” (actually
discharge
) by means of FRNs may create an open account wherein the parties to the account are almost “forever” subject to equity jurisdiction. By using notes to discharge the balance of an account, the debtor fails to extinguish that account and remains “trapped” in the role of debtor relative to the creditor/plaintiff.
However, previous text from this book has suggested that even “notes” (legal tender) could be used as a “tender” to “pay” and
extinguish
a debt if the parties expressly agreed in a written contract that the “notes” would pay and extinguish the debt. . . .
Thus, while the use of notes may “not necessarily” constitute an admission of the correctness of an account (and thus an escape from equity), the notes could recognize the debt as correct, and extinguish that debt/account IF that correctness and extinguishment was expressly stipulated in a contract between the parties.
All of this suggests that the stigma of using legal tender might be avoided by the sophisticated use of contracts. I would definitely “pay” my debts and extinguish any account by using gold/silver coin. I would definitely “discharge” my debts by using legal tender/FRNs and thereby leave the account balance uncertain and subject to equity jurisdiction. But I might be able to “pay” my debts and extinguish accounts with legal tender (FRNs) by adding a contract to my “payment” wherein the creditor expressly agreed that I had paid the balance in full and the account was thereby extinguished.
But this possibility might only apply when using legal tender in the form of
cash
(FRNs) to pay my debts. What creditor is going to sign a contract that agrees that he’s been paid in full by the tender of a personal or company check? At the moment the creditor takes a check, he can’t truly know if the check will clear the bank. Thus, the creditor taking “payment” by check will probably be reluctant to sign a contract acknowledging that he’s been “paid in full” when he does not yet know that the check will clear.
When used with a written contract, a debit card might work to achieve a “payment” rather than a “discharge”. But a credit card—where “payment” may not actually take place for some time and/or is subject to later revocation by the credit card holder, is unlikely to support a contract of payment and extinguishment.
The use of legal tender “notes” (FRNs) may be
prima facie
(one witness) evidence of the “settlement” of an account. This “settlement” probably corresponds to “discharge” while “extinguishment” corresponds to “payment”.
If it’s true that notes create only “prima facie” evidence that an account has been settled/balanced (but not extinguished), it might follow that payment by means of gold or silver coins would constitute “probable cause”/
two
witnesses that the debt had been paid/extinguished. If notes (FNRs) implicate only one witness and lawful money (gold/silver) implicates two witnesses, who/what might those witnesses be?
I learned years ago that lawful money (gold/silver) conveys both the legal and equitable title to a property. Two titles. Two witnesses?
FRNs, on the other hand—being loaned into circulation with the equitable title available for public use while the legal title was retained by the Federal Reserve System and/or the federal gov-co)—only transfer one title to the buyer—the equitable title. One title = one “witness”?
The idea that the kind of currency you use might determine the number of “witnesses” to the transaction seems farfetched, but it does make a little sense. When I purchase something with FRNs, I get the equitable title, but the legal title goes to the Federal Reserve System that loaned the notes into circulation. Because the Fed seemingly gets legal title to the property purchased with FRNs, there are two “buyers” to every transaction executed in FRNs: the purchaser (me) and the Federal Reserve System. But one of the “buyers” (the Fed) was not actually present at the transaction and cannot “witness” to that transaction. Thus, by transacting with FRNs (and without contract), the purchaser is the only “witness” to his purchase. One witness = prima facie evidence.
That’s a confusing rabbit trail.]
And a
party signing
his name to an
account current
is
not conclusive evidence
of his owing the amount therein stated.
[I don’t know exactly what an “account current” is, but it appears that even a signature to an account will not necessarily prove that the agreed balance is conclusively “correct”. That means the balance remains to be discovered and courts of equity might have jurisdiction. For now, it appears that a contract containing TWO signatures might overcome this “uncertainty” and thereby avoid discovery and equity jurisdiction.]
The
implied
admission in such case may be
rebutted
by
competent
proof, as
fraud
,
error
or
mistake
.
Miller v. Probst,
Add. (Penn.) 334 ;
Kirkpatrick v. Turnbull,
id. 260 ;
Nichols v. Alsop,
6 Conn. 447 ;
Perkins v. Hart,
11 Wheat. (U. S.) 237.
[What’s the difference between “error” and “mistake”? An error was unintentional (like a mis-stroke in a date entry error”) while a “mistake” is “intentional” but based on a faulty and “mistaken” understanding?]
But
payment
of the balance,
shown
by an account to be
due
to the party
receiving
it, has been held an
admission of the correctness
of the account,
though not absolutely conclusive
.
Bruen v. Hone,.
2 Barb. 586;
Lockwood v. Thorne,
11 N.
Y.
(1 Kern.) 170 ; revers. ing S. C., 24 Barb. 391.
[OMG, when it comes to money it appears that
nothing
is “absolutely conclusive”.]
As to
express admissions, sufficient to, bind the party
, see
Thurmond v. Sanders,
21 Ark. 255 ;
Owen v. Boerum,
23 Barb. 187.
[These express, binding admissions are probably the contracts that I’ve previously speculated about.]
-
§ 5. No objection made. If one party presents his account to the other, and the latter makes no objection, it may well be inferred that he is satisfied with and assents to it as correct. So, if an account be made up and transmitted by one party to the other by mail, and the latter keeps it for some considerable time without making any objection, he is held to have acquiesced in it.
Stenton v. Jerome,
54 N. Y. (9 Sick.) 480.
[There’s the power and danger of “notices”.
The IRS sends you a notice in the mail of an account. You keep it but make no objection. After some “considerable time,” your failure to object becomes
your witness
to the validity of the account balance.
Note that this account can be “made up” by just one “party”. In theory, I could “make up” an account wherein you, reader, owe me $5,000. I could send you a notice of my “made up” account and if you didn’t object, you might be held liable.
But—note that the account must be “made up” by a “party” as in “party to the account”. This suggests that the quickest way to dispute an alleged balance is to deny the existence of an “account relationship” wherein you are the debtor and the notice-sender is the creditor. If there is no account-relationship, neither the notice-sender nor the notice-recipient are “parties” to that account.
Apparently, a claimant must be a “party” to an account to be entitled to “make up” an account balance. If so, then once the account relationship is denied by the debtor, the claimant may be stripped of his presumed status as
party
to the account. If there’s no account, there can’t be any parties to the account. If the claimant is not party to an existing account, the claimant’s entitlement to “make up” an account balance should be void and the resulting claim insufficient.]
A very general statement of the rule is, that when a party indebted upon an account receives and retains it beyond such time as is reasonable under the circumstances and according to the usage of the business, for examining and returning it, without communicating any objections, he is considered to acquiesce in its correctness, and he becomes bound by it as an account stated. Signature to the account, or express admission, is not necessary.
Case v. Hotchkiss,
1 Abb. Ct. App. (N. Y.) 324 ;
Townley v. Denison,
45 Barb. 490 ;
Terry v. Sickles,
13 Cal. 427 ;
White v. Hampton,
10 Iowa, 238 ;
Tharp v. Tharp,
15 Vt. 105 ;
Langdon v. Roane,
6 Ala 518.
[The A.D. 1877 concept of “account” seems to differ from the modern concept of notice in that the proper response to the statement of “account” was to object, while the proper response to a modern notice is to inquire.
Again, note that a fundamental condition precedent for acquiescence to the correctness of an account balance is that the recipient of the statement of account be the “party indebted upon an account”. If the recipient of a statement of account balance can prove that 1) no account exists; and/or 2) that he is not the account debtor—the statement of account balance seemingly becomes irrelevant.
Let’s suppose for the sake of argument that virtually all modern court cases were actions on account in courts of equity. Would
service
of a court case’s petition upon a defendant constitute a “statement of account” balance? And if a defendant did not properly object to that service by denying 1) the existence of an underlying account relationship between himself and the plaintiff; and/or 2) his implied status as account party-debtor—then, even without the recipient’s signature or express agreement, that recipient could become a “confessed” debtor in the alleged account, and likely to be convicted when the case comes to trial and the magistrate’s only job is to “balance” the account.
Whether modern court cases are “actions on account” is pure speculation at this time. It’s entirely possible that any resemblance between the “action on account” of A.D. 1877 and modern court cases may be purely coincidental.
But you gotta admit that the “action on account” walks like a duck.]
This rule is held to apply to accounts between merchants residing in different countries [this state and The State?]
(Murray v. Toland,
3 Johns. Ch. 569 ;
Stebbins v. Niles,
25 Miss. 267 ;
Freeltznd v. Heron,
7 Cranch [U. S.], 14′7); and it also applies to an account between an attorney and his client.
Case v. Hotchkiss,
1 Abb. Ct. App. (N. Y.) 324 ; S. C., 3 Keyes, 334;
Pulliam v. Booth,
21 Ark. 420. But it is held that the rule ought not to be applied in favor of the party [debtor], as where he claims that the statute of limitations commenced to run from the time of rendering the account. In such case he must show some word or act marking or implying that he assented to the account.
White v. Campbell,
25 Mich. 463. See
Randel v. Ely,
3 Brewst. (Penn.) 270.
What is to be regarded as a reasonable time within which to object to an account rendered, where there is no dispute as to the facts, is matter of law [only]. But where the proofs are contradictory, the question is one of law and fact ; and in that case may properly be submitted to the jury, under the instructions of the court as to the law.
Wiggins v. Burkham,
10 Wall. (U. S.) 129. See
Lockwood v. Thorne, 11 N .Y Y.
(1 Kern.) 170 ;
Davis v. Tiernan,
3 Miss. (2 How.) 786.
An
account
containing an item of a loan to a
third person [“ADASK”?], for which the party to whom it is rendered [“Adask”?] is not responsible, does not become conclusive as an account stated, by being retained for several months
(Porter v. Lobach,
2 Bosw. [N. Y.] 188;
Spangler v. Springer,
22 Penn. St. 454);
[Apparenly, if the debtor is “ADASK” and the account is sent to “Adask,” that account will be acquiesced IF “Adask” is fiduciary for “ADASK”. But if “Adask” is not fiduciary for “ADASK,” the account will not be admitted to by “Adask” for at least several months.]
nor
does the rule of “account stated” apply as
against a wife in favor of her husband
.
Southwick v. Southwick,1
Sweeny (N. Y.), 47; S.C. affirmed, 49 N. Y. (4 Sick.) 510.
[What about vice versa? Against the husband in favor of the wife? This might apply in child support and divorce cases or it might be evidence that my notions on “actions on account” may be mistaken.]
It is applicable, however, to an account rendered by a
land
agent, if received and not objected to for many years; such a case not being within the exception established with respect to persons holding confidential relations to each other. Philips v. Belden, 2 Edw. Ch. (N. Y.) 1. See Holmes v. Morse, 50 Me. 102.
[I don’t understand this last reference to “exception” relative to “confidential relations” (as fiduciary relations). It appears to say that if the account involves a land agent, the account will not be acquiesced to until after “many years”. But if the account involves a “land fiduciary” (??), the account might be acquiesced to much more quickly.
But maybe that analysis is backwards.]
§ 6. Conclusiveness. To entitle a plaintiff to recover it has been held sufficient if he prove the account stated, and this was formerly conclusive.
Bartlett v. Emery,
1 Term R. 42, note. But in modern times a greater latitude has prevailed, and errors which may have crept into the account, may now be shown and corrected. Th.
Holmes v. D’ Camp,
1 Johns. 36 ;
Wilson v. Wilson,14
Corn. B. (5 J. Scott) 626 ;
Thomas’ Adm’r v. Hawkes,
8 M.
&
W. 140. An account
stated
or
settled
is a
mere
admission
that the account is correct. It is not an estoppel. The account is still open to impeachment for mistakes or errors. Its effect is to establish,
prima facie
,
the accuracy of the items without other proof; and the party seeking to impeach it is bound to show affirmatively the mistake or error alleged. The force of the admission, and the strength of the evidence which will be necessary to overcome it, will depend upon the circumstances [that sounds like equity] of the case. An account stated, which is shown to have been examined by both parties, and expressly assented to or signed by them, would afford stronger evidence of the correctness of its items than if it merely appeared that it had been delivered to the party, or sent by mail, and acquiesced in for a sufficient length of time to entitle it to be considered as an account
stated
. Lockwood v. Thorne,
18 N. Y. (4 Smith) 285, 292;
Champion v. Joslyn,
44 N. Y. (5 Hand) 653. [The “acquiescence” creates the plaintiff’s “entitlement” to elevate his “account” to the status of an “account stated” which is presumably agreed to by the defendant. The “account stated” is much more powerful than the mere “account”.] So, too, an account
settled
,
that is, when the balance it exhibits has been paid or adjusted between the parties, is stronger evidence and requires more proof to overcome it than a mere account
stated.
[Thus, if you pay all or even a portion of the alleged balance, the existence of the account and your status as debtor are all but conclusively proved. An “account” may be alleged or implied and easily disputed. An “account stated” is an account
confessed
by the debtor’s assent/ acquiescence. An “account proved” is an account virtually
proved
by the debtor’s payments.]
But the parties are never precluded from giving evidence to impeach the account, unless the case is brought within the principle of
an estoppel in pais,
or of an obligatory agreement between the parties; as for instance where, upon a settlement, mutual compromises [plea bargins; out of court settlements?] are made
. Lockwood v. Thorne,
18 N. Y. (4 Smith) 285 ;
Kock v. Bonitz,
4 Daly (N. Y.), 117, 120; and see
Lockwood v. Thorne,
11 N. Y. (1 Kern.) 170;
Stenton v. Jerome,
54 N. Y. (9 Sick.) 480;
Bv,cklin v. Chapin,
1 Lans. (N. Y.) 443, 447;
Keane v. Branden,
12 La. Ann. 20;
Jones v. Dunn,
3 Watts & S. (Penn.) 109;
Hutchinson v. Market Bank of Troy,
48 Barb. 302. See
Sehettler
v. &zit/4
34 N. Y. Super. Ct. 17. A stated account, which is binding on the original parties, is also binding on a guarantor [surety].
Bullock v. Boyd,
2 Edw. Ch. 293.
Where a balance is struck by the parties, after a hearing before referees has commenced, which is reported to the referees and entered by them upon their minutes, the parties are held to be concluded by it.
Clark v. Fairchild,
22 Wend. 576. So, where an “account settled” is relied on, by way of plea or answer to a bill in equity for an account, it is conclusive, unless the plaintiff can allege and prove some fraud or mistake. [But not “error”? “Mistake” may imply no actual meeting of the minds.]
Costin v. Baxter,
6 Ired. Eq. (N. C.) 197. And where a party stated an account, which he sent to the other by a messenger, with his check for the balance, the party receiving the check and obtaining the money thereon, was held bound, although he objected at the time, that the balance was too small.
Davenport v . Wheeler,
7 Cow. 231.
It is held to be no bar to an action on an account stated, that the defendant’s indebtedness was for liquors sold by plaintiff on Sunday, contrary to law, if the account was not stated on Sunday. But if the sale was illegal for want of a license, the action on an account stated could not be maintained.
M
elchoir v. McCarty,
31 Wis. 252 ; S. C., 11 Am. Rep. 605; see, also,
Kennedy v. Brown,
13 J. Scott (N. S.), 677 ;
Dunbar v. Johnson,
108 Mass. 519.
§ 7.
Opening account
.
When the parties have adjusted an account, struck a balance, and agreed upon the amount due, courts are exceedingly unwilling to open it again, unless there has been fraud, or it is very clear that there has been a
mistake
. Kock v. Bonitz,
4 Daly, 117. For “no practice could be more
dangerous
than that of
opening
accounts which the
parties have themselves adjusted
, on suggestions supported by doubtful, or by
only probable testimony
.” Chief-Justice MARSHALL, in
Chappedelaine v. Dechenaux,
4 Cranch, 306. And see
McIntyre v. Warren,
3 Abb. Ct. App. 99 ;
Wilde v. Jenkins,
4 Paige, 481.
If, however, there has been any
mistake, omission, accident, fraud, or undue advantage
, by which an
account stated is in truth vitiated
, and the balance incorrectly stated,
equity
will permit it to be opened and re-examined
in
Coto
[toto?]
,
or as to
particular items
, as the allegations may warrant.
Farnam v. Brooks,
9 Pick. 212 ;
Roberts v. Totten,
13 Ark. 609 ;
Rembert v. Brown,
17 Ala. 667;
Bankhead v. Alloway,
6 Coldw. (Tenn.) 56 ;
Chatham v. Niles,
36 Conn. 403 ;
La Trobe v. Hayward,
13 Fla. 190 ;
Shirks’ Appeal,
3 Brewst. (Penn.) 119 ;
Kronenberger
v.
Binz,
56 Mo. 121. And it is held that when there has been
fraud
, a court of
equity
will open and examine accounts after
any length of time
, even though the person committing the fraud be dead.
Bolifeur v. Weyman,
1 McCord (S. C.), 156. So
usurious
charges in a stated account will be corrected in equity, and relief seems open until a judgment has been obtained, or an award made and performed. Bullock v. Boyd, Hoffm. Ch. (N. Y.) 294. An account settled by bond or release [The terms “bond or release” are also associated with being jailed or incarcerated. Is this association merely coincidental, or are even today’s periods of incarceration an “action on account”?] may be opened for fraud or collusion, or where the settlement was made under suspicious circumstances (Kelsey v. Hobby, 16 Pet. 269 ; Love v. White, 4 Hayw. [Tenn.] 210); but in such case the burden of proof is upon the complainant. Ib.
It is said that a settled account between client and attorney, or between other persons standing in confidential relations [including fiduciary relationships] to each other, will be more readily opened than any others. See Story’s Eq. Plead., § 800; Philips v. Belden, 2 Edw. Ch. 1; Rembert v. Brown, 17 Ala. 667. But an account settled between partners will not be reopened by a court of equity in absence of proof of fraud, misrepresentation, or denial of access to the books. Shirks’ Appeal, 3 Brewst. (Penn.) 119. In opening a settled account, the correction of errors is sometimes allowed on both sides. Floyd v. Priester, 8 Rich. Eq. (S. C.) 248.
A
stated
account will
not
be opened, where it appears that the
plaintiff has been guilty of negligence in detecting the errors he has discovered
.
Bruen v. Hone,
2 Barb. 586. So, after the lapse of
twenty years
, it is held
too late
to open a
settlement
of accounts, upon the ground of
inadvertency,
when both parties knew their rights
.
Hutchins v. Hope,
7 Gill. (Md.) 119. See
Gregory v. Forrester,
1 McCord (S. C.), 332. And, where a party not standing in the relation of trustee, in stating his claim, omits to give his debtor a credit for a payment made, and they settle, the debtor cannot, after the lapse of
six years
, open the account, on the ground that he has but recently discovered the mistake.
Randel v. Ely,
3 Brewit. (Penn.) 270. And see
George v. Johnson,
42 N. H. 456 ;
Ogden v. Astor,
4 Sandf. (N. Y.) 311.
A
mistake in law
is no ground for opening a settled account.
Commissioners, etc., v. Glterky,
Wright (Ohio), 493. Nor will a
stated
account be readily opened after the
defendant’s books
have been casually
destroyed
, as by fire.
Bruen v. Hone,
2 Barb. (N. Y.) 586. So after judgment and execution, and sale under a
mortgage
, the account will not be opened, although it appears to be irregular.
Bloodgood v. Zeily,
2 Caines (N. Y.), 124. And where one of the parties goes over the account in the
presence
of the other, and finds a certain balance due, which is
not objected
to by the other party, it
becomes an account stated
,
and can only be opened on proof of fraud or mistake
.
Kock v. Bonita,
4 Daly, 117.
A court of equity will not open accounts and sustain claims which are barred by the statute of limitations, without exercising great caution.
Stearns v. Page,
7 How. (U. S.) 819. And lapse of time will be allowed to protect delinquents where the transaction is old, the accounts unsettled, and the amount sought to be recovered uncertain, or when, from the death of parties, all knowledge of the true state of the accounts has passed into oblivion, and when any attempt to settle and adjust the accounts would probably result in great injustice to the defendant.
Winston v. Street,
2 Patt. & H. (Va.) 169. See
Dakin v. Demming,
6 Paige, 95 ;
Dexter v. Arnold,
2 Sumn. 108 ;
Atwood v. _Fowler,
1 Edw. Ch. 417.
An account stated, which has been acquiesced in for a number of years, without objection, will not be opened (in the absence of all pretense of fraud or imposition), except upon conclusive evidence of error or mistake ; and the party who seeks to open a settlement of accounts, on the ground of mistake, assumes the burden of proving distinctly wherein the mistake consisted, and of furnishing the data, by which it may be corrected.
Towsley v. Denison,
45 Barb. 490 ;
Chubbuck v. Vernam,
42 N.Y. (3 Hand) 432;
Burke v. Isham,
3 Alb. Law Jour. 209; S.C., 53 N.Y. (8 Sick.) 631 ;
McIntyre v. Warren,
3 Abb. Ct. App. (N.Y.) 99 ;
Herrick v. Ames,
1 Keyes (N. Y.), 190. See
Sutphen v. Cushman,
35 Ill. 186 ;
Dakin v. Demming,
6 Paige, 95 ;
Sronenberger
v.
Binz,
56 Mo. 121.
When fraud is proved, it will be a sufficient ground to open the whole account.
Brown v. Vandyke,
8 N. J. Eq. 795 ;
Bruen v. Hone,
2 Barb. (N.Y.) 586. So it is held, that the whole account may be taken
de
novo,
for gross mistake in some cases.
Branger v. Chevalier,
4 Cal. 353. But this can only be done where such a mistake or error affects all the items of the transaction. Ib. [What kind of error or mistake would affect ALL the items in a transaction other than FRAUD?] Generally, where errors or mistakes only are shown to exist in the account, it will not be opened, but the party will merely be permitted to surcharge and falsify it.
Bruen v. Hone,
2 Barb. 586 ;
Dover v. Hall,
3 Harr. & J. (Md.) 4:3;
Bullock v. Boyd,
2 Edw. Ch. (N. Y.) 293 ; S. C., again, 1 Hoffm. 294. And the mistake or error must be distinctly alleged. lb.
Accounts having been stated between the parties, without fraud or coercion, and the statements being accompanied with written agreements, showing how far they should be binding, and for what cause they should be varied, the accounts will be opened so far only as is provided for by the terms of such agreements.
Troup v. Haight,
Hopk. Ch. (N. Y.) 239.
That’s as much as the 1877 book had to say on the matter of “actions of account”. Some of it seems irrelevant to my hypothesis that most of today’s court battles may be conducted as “actions of account,” some of it confuses or contradicts that hypothesis, but the majority of the text seems to support and amplify my hypothesis.
I can’t say at this time that the majority (perhaps all) of modern court cases are conducted as “actions on account,” but you have to admit that the supporting evidence does “walk like a duck”. If it’s true that the modern “dollar” is a “unit of
account
,” and that (as some claim) in our courts it’s “all
commercial
,” then the hypothesis that most of even all modern court battles may be “actions on account” is plausible and even probable.
As always, I stand to be corrected. But, for the moment, I am so confident that this hypothesis is roughly correct, that I am flat-out
excited
. I think this hypothesis may be an important insight.
Thanks for reading this far.
At arm’s length and within The United States of America,
Alfred Adask
