TOME XXIV

would be forthcoming and available in taking the account as directed by the judygment of the Court of Appeals, and in ascertaining the balance thereon, or that such of the books and accounts relating to the receipts and payments, as would be forthcoming and available, would be in the same state as they were in at the time when the employment of Perry in the office ceased. We subit, therefore, that the judgment of the Court of Appeals is contrary to the law of the province, and the account directed cannot be taken upon any fair or equitable principle. But, even if any subject of account does exist between the estate of Perry and the late sheritf, which we insist is not the case, the direction of the judgment of the Court of Appeals is not proper with reference to such account; it is more extensive in its nature than any which onght to be taken between the parties. Ædivards v. Lord Chadivorth (À).

Charles BULLER and FLEMING, for respondent : According to the laws of Lower-Canada, Perry's act as agent bound himself and his legal representatives duly to account with his employer for his receipts, disbursements and general administration, and he and they are liable to pay and discharge the balance which upon à ful examination of the accounts between him and his employer, should be ascertained to be due, The ordinance of Louis XIV, A. D. 1667. title 29, “ De la reddition des comptes,” art. 1 (2), is conclusive upon this obligation. “Les tuteurs, procureurs, curuleurs, fermiers judiciaires, séquesties, gardiens et autres qui auront administré Les biens d'autrui, seront tenus de rendre compte aussitôt que leur gestion sera finie : et seront toujours : réputés comptables encore que le compte soit clos et arreté, jusqu'à ce qu'ils aient payé le reliquat, s'illen est dû, et remis toutes les pièces justifiratives"" Nallé, in his Æsprit des Ordonnances de Louis XIV (3), lays it down that this ordinance obliges all persons who have the management and administration of the property of others, duly to account; and that the fact of administermge the affairs of the principal, imposes upon the agent or person employed, the obligation of duly accounting to his employer. Pothier, tit. “ Du Contrat de Mandat ehap. 2, no 51: Domat (lib. 1, tit, 15, sec. 3 and 8), and Loisei (Hb. 1 tit. 5), states the law on the duties and obligations of an agent to the same effect, The passage from Pothier (no 61) expressly mentions an action similar to that

brought by the late respondent, as the p'oper mode of enfor-

(1) S Ves., 46.

(2) Isambert, Anciennes Lois Françaises, vol. 18, p. 158

(3) Vol. 1, pp. 392 and 4354,

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According ent bound ount with id general \4 und dision of the | Le ascer- .1667. title conclusive Curoleurs, autres qui s de rendre seront toitsoit clos el Len est du, his Esprit n that this éement and 0 account, ie principal, bligation ot Du Contrat 5, SEC. 3 and duties and assage from ilur %o that de of enfor-

cing the claims of the principal against the agent : “ De l'obligution, que contracte le mandatuire par le contrat de mandat, naît l'action mandati directa qu'a Le mandant contre le mandataire, aux fins que, dans le cas auquel le mandutuire, sans une juste cause d'empéchement, aurait manqué d'eaécuter Le mandat dont il s'est chargé, il soit condamné envers le mandant aux dommages et intéréts résultant de l'inexécution du mandat, comme il « été dit en l'article premier ; et que, dns le cas, auquel il aurait exécuté Le mandat, il soit condamné à en rendre compte an mandant et à lui remettre ce zr'ilen retient, suivant ce qu'il « été dit en l'article précéden’. And under the same title, no 64, Pothier adds : “ Cette action peut s'intenter non seulement pur le mandant, mais pur ses héritiers et autres successeurs, et elle peut pareillement s'intenter non seulement contre Le mandataire, mais contre ses héritiers; car quoique le mandat finisse par la mort du mandataire et que les héritiers du inaudataire ne succèdent pas à l'obligation que le mandataire avait contractée d'exécuter le mandat lorsque le mandataire est mort, avant que d'avoir été en deineure et d'avoir eu le loisir de lerécuter : œu contraire, lorsque le mandataire n'est mort qu près avoir erécuté Le mandat, at moins en partie, où qu «près aroir élé en demeure de l'exécuter, ses héritiers suc-

cèdent à l'obligation de rendre compte de sa gestion où à celle des dommages et iatérels résultant de lu demeure en luquelle « été le défunt d'exécuter le mandat dont il s'était chargé” These authorities clearly establish that the duty to account and discharge the balance due, necessarily resuits from the relation between the agent and his principal ; that the oblivation to account and pay the amount due by the agent devolves on his deceuse, upon his legal representative :

and that an action to account is the proper proceeding to be taken by the principal to enforce that obligation, The sole question, therefore. is, whether the first plen pleaded by appelant, atfords any answer to the late respondent's action. The plea is plended to the whole of the declaration ; but to that part of it which consists of à demand for the payment of the balance which should be found due to the late respondent, it cannot be allewed that that pleu or those reasons aford any answer; because, whether the books of account were or not in the late respondent’s custody, and whether the

monies of the late respondent were or not legally in his pos-

session, the agent must have been equally “liable to make

good such sums belonging to the late respondent as he had

applied to his own use or for his own purposes. We, there-

fore, submit that this plea does not extend to or cover the

demand made by the declaration and that the pleu is, for that

reason, altogether insufficient. But, independently of this ground of objection, the plea affords no answer to the demand for an account. [It appears upon the record that the late respondent offered the books and all other accounts, vouchers and papers, which had been in the possession of Francis Perry at the time he ceased to act for him, to appellant, to enable her to make out the account. The custody of those documents being with the late respondent at the time he brought the action, formed, therefore, no impediment to the due renderi iny of the account. As to the objection, that appel-

lant could not know or be assured that the documents were in the same state as at the time of Francis Perry’s decense, it is altoscther futile, as the late respondent might, according to the laws of Lower-Canada, have been examined and appellant was, in fact, examined in this action. The allegation that the materials necessary for the preparation of the account demanded are in the eustodv of plaintiff, can never exonerate a defendant from liability to account for balance due by him.

Such an allegation may form a ground for giving defendant leave to examine those materials and time to enable him to do so; but it cannot be a sufficient reason for the dismissal of plaintiffs action, as insisted npon by appellant’s first plea. It does not, in fact, hllege ax defence to the action. The argument of appellant, that the monies received by Francis Perry were received by him as clerk to the late respondent and that they were in the possession, under the control and at the disposal of the late respondent, does not appear material to or to aid the first plea of appellant, and is certainly no bar to the late respondent’s demand. A similar statement might be made as a defence to every proceeding brought by à principal against his agent, as the possession of the agent is legally that of the principal : and if the monies received are placed in à bunk to the credit of the principal, he undoubtedly has the control of them, although, as in the present case, he may permit and authorise the agent to draw cheques for and to receive sums from that account to an unlimited amount. It cannot be pretended that the agent would not be liable to account for such sums as he so drew out and received: nor can such reason form an answer to an action of account which would, of course, extend to such monies as the agent received on behulf of his principal‘and which the agent never placed under the control or at the disposal of his principal. We submit, therefore, that the last mentionel grourd of defence is altogether insufficient and that it has no bearing upon the question between the parties to the action. Appellant in the court below altogether failed in supporting her plea of the general issue.

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The Eurl of Hardwiche v. Vernon (4): Lupton v. White (2); Massey +. Banner (3)

Lord CAMPBELL: The question in this appeal is, whether Perry's representatives are liable in an action which is in the nature Of an action of account, brought by Gugy, his late employer. This depends upon the relation subsisting between the parties, whether in fact they were agent and principal or master and servant, There is no doubt that where a person is employed by another to transact business for his employer and is allowed to have money in his hands, in the character of agent or clerk, he is liable to account for such money. But there is a great difference between à party so circumstanced and one who, being immediately under the eye of his employer and subject to his daily control, keeping, in fact, not his own, but his employers accounts, entering them in his masters books and giving over the vouchers and receipts to his custody. Whether such à dealing can constitute the relation of agent and principal, so as to make the former liable to an action or bill For account, must depend on the especial facts of the case: primd fucie, such liability would not exist. In this ense it appears to their Lordships that it is sufticiently established by the pleadings and evidence, that Perry Was only the clerk of Gugy, the sheritf, and that there is no pretence for calling him the deputy-sherif. Now, in such character, it is true that he received and paid large suims on account of his employer and it is alleged, as the "ground of the action, that he did not account for such sums. But the books in which all his transactions were entered were in the office of the sheriff, open at any time to his inspection and as he was in the daily habit of attending the office, he must be considered to have been cognizant of their contents. The vouchers and reccipts and banker’s book were all in his custody, and were so during the whole time of Perry being employed by him ; and &ïter neaurly ten years employment and acquiescence in these :ccounts, it is too late to seek to open them in an action for an account. Their Lordships think that no action of account can be sustained, in the circumstances of this case : and, therefore, that the decision of the Court of King's Bench was right and ought to have been affirmed. Their Lordships give no opinion as to the right of respondent to any other remedy he may be advised to seek, by bill or otherwise : but they will advise Her Majesty to reverse the

(1) 14 Ves., 505,

2) 15 Ves., 432.

(3) 4 Mad., 414, Luce, & Wal., 241.