Phillips v Phillips
| Jurisdiction | England & Wales |
| Judgment Date | 10 November 1853 |
| Date | 10 November 1853 |
| Court | High Court of Chancery |
English Reports Citation: 68 E.R. 596
HIGH COURT OF CHANCERY
Observed upon, Makepeace v. Rogers, 1865, 4 De G. J. & S. 649; 46 E. R. 1070. See St. Aubyn v. Smart, 1867, L. R. 5 Eq. 189; L. R. 3 Ch. 646.
596 PHILLIPS V. PHILLIPS 9 HAKE, 471, [471] phillips v, phillips. Feb. 19, 1852. [Observed upon, Makepeace v. Rogers, 1865, 4 De G. J. & S. 649; 46 E. E. 1070. See St. Aubyn v. Smart, 1867, L. E. 5 Eq. 189; L. E. 3 Ch. 646.] Demurrer allowed to a bill for an account where it did not appear that the account between the Plaintiff and Defendant was mutual, as consisting of receipts and payments by each party on account of the other, and where it did not appear that the payments forming one side of the account were other than matters of set-off as against the receipts on the other side, and notwithstanding a statement in the bill that the Defendant had, in a particular sale or transaction, acted as the agent of the Plaintiff in receiving monies on his account. The bill was filed for an account of monies received by the Defendant and his deceased partner on their joint account, on account of the Plaintiff; and of the monies which the Defendant and his deceased partner bad paid on their joint account, on account of the Plaintiff; and for payment of the balance. The bill stated that for several years before August 1847 the Defendant and his brother (since deceased) carried on business as jewellers in Cockspur Street, and were in the habit, from time to time, of receiving divers sums of money from and on account of the Plaintiff, and the sums so received were treated by them as part of their co-partnership assets; and the Defendant and his partner were also in the habit, from time to time; of advancing and paying out of their co-partnership funds divers sums of money to, for and on account of the Plaintiff; and that there was, in fact, a current account between the Plaintiff on the one part and the Defendant and bis partner on the other part; that the account was balanced in January 1843, and a certain sum then stated and agreed to be due to the Plaintiff thereupon, as appeared by the books of the firm in the possession of the Defendant, which he refused to produce or shew to the Plaintiff; and that, between that time and August 1847, the Defendant and his partner had received upwards of 650 on account of the Plaintiff, the particulars of which would appear from the said books. The bill stated that the transactions between the Plaintiff and the Defendant and his partner were very numerous; and that amongst other monies which they had received on account of the Plaintiff were monies arising from the sale of divers railway shares belonging to the Plaintiff, sold by them on his account. [472] The bill charged that an account ought to be taken of the receipts and payments by the Defendant and his partner on account of the Plaintiff; and that a large sum of money was in fact due to the Plaintiff on the balance of such account. The Defendant demurred for want of equity. Mr. J. H. Palmer, for the demurrer. The case of the Plaintiff is entirely at law : Dinwiddie v. Bailey (6 Ves. 136), Moses v. Lewis (12 Price, 502), Frietas v. Dos Santos (1 Y. & J. 574). The charges of the bill, as to the refusal of the Defendant to permit the Plaintiff to inspect his books, will not support it. Since the statute 14 & 15 Viet, c. 99 (see sect. 6), the Plaintiff might have obtained inspection in a Court of law, if he were entitled to it. ' . Mr. Baggallay, for the bill. The suit is by a principal against his agent, which is always a subject of account. In the case of M'Kenzie v. Johnston (4 Madd. 375) it is laid down by Sir John Leach that, wherever the Defendant is agent for the sale of the property...
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