
    Freeland and Kennan, Administrators of Peter, v. Cocke’s Representatives.
    Monday, Dec. 1st, 1812.
    a. Account Rendered — Account Hust Be Taken Together. — When a party claims to charge another by virtue of an account rendered, he must take that account altogether, and not garble or alter it, Unless he can surcharge or falsify the' same, either by showing errors in calculation, or proving, from other testimony, that it is incorrect as to the amount charged or debited, or stated upon principles not conformable to the agreement or understanding of the parties at the time.
    3. Same — Same—Chancery Practice. — In such case, the Court of equity may direct the books of the party rendering the account to be produced, to see whether such account is drawn np conforma-bly with the books, or altered by an after thought: in the former of which events a presumption would arise, that such was the original understanding and intention of the parties, unless proof were exhibited to the contrary: and in the latter, such presumption would be done away.
    Upon an appeal from a decree of the Superior Court of Chancery, for the Richmond district, affirming a decree of the county Court of Prince-George.
    The appellees, representatives of James Cocke, deceased, *were plaintiffs in the suit; the object of which, originally, was to 'recover of the administrators of Walter Peter, the sum of 1401. 16s. 3d., with interest thereon, from the second day of January, 1801, in consequence of the award and determination of certain arbitrators, made and rendered after the said Peter’s death, in pursuance of an arbitration bond executed in his lifetime; the plaintiffs alleging that such award was made up by the consent of James Preeland and Robert Kennan, his administrators. Thi-s consent they denied by their answer, and also demurred to the bill, on the ground, that the powers conferred on the arbitrators ceased and determined at the death of Walter Peter, and that the proper remedy of the plaintiffs, if the award was valid, was in a Court of common law.
    The plaintiffs then filed an .amended bill, in which they prayed a decree for such balance of account, as might appear due, on a fair and final settlement of all matters between the estate of the said James Cocke, and the defendants’ intestate.
    In answer to the amended bill, the defendants admitted there had been various transactions between the said James Cocke and Walter Peter, on their partnership account, (as members of a company called the Hood’s Company,) and individually; but relied on a settlement of all those accounts made between Walter Peter, in his lifetime, and Joshua Poythress, one of the executors of the said James Cocke, and himself, a partner of the Hood’s concern, as would appear from a paper, (annexed to the answer,) signed by the said Joshua Poythress, and bearing date October 13th, 1783; according to which, the balance then due to the said Peter, from the said Cocke’s estate, was 4,066 pounds of tobacco, with interest thereon, from the 19th of December, 1781; which tobacco balance, they extended in money, at 36s. per cwt., October 13th, 1783. They allowed, however, certain credits, for subsequent payments, so as to reduce that balance to *131. 14s., on which sum they charged interest from May, 1792.
    No depositions were taken on either side.
    The county Court referred the accounts, between the parties, to a commissioner, who made a report, showing a balance due from Walter Peter to James Cocke, on the 30th of May, 1781, of 911. 8%á., in paper money, which, reduced by the scale of depreciation, was stated at 12s. Id.; debiting, also, (conformably with the account exhibited by the defendants,) Walter Peter with a cash payment of 121. 5d., April 12th, 1785; with another, in the same year, of 401. ; and with two tobacco payments, July 12th, 1791, and May 5th, 1792, amounting to 4,145 pounds, rated, partly, at 15s. and 6d., and partly at 14s. and 6d. per cwt., and extended, in money, at 311. Is. 5d. The commissioner acknowledged, that the only document exhibited by the parties for his government, was an account furnished by Walter Peter, to the executors of James Cocke, embracing, not only the transactions between them as individuals, but all those of the said Cocke with the Hood’s Company. With the latter, there appeared, from that statement, to have been several accounts kept, and left open until the time of making the same; the balances on which, as well as some cash payments entered in one of them, were extended in tobacco at various prices, and then carried to the account current, the balance in which, in favour of James Cocke, was also extended in tobacco; thereby giving a balance in favour of Walter Peter (including some interest) of 4,066 pounds of tobacco.. This method of stating the accounts, operated so much to the injury of James Cocke, as to be deemed, by the commissioner, inadmissible, without a satisfactory reason therefor, which he had not been able to obtain from the parties; he thought it more equitable to bring ail the transactions between the said Cocke and the Hood’s Company, into a general account, and at the close of those transactions to carry the balance due thereon, to his debit, in account current with Walter Peter; *as, at the time, there appeared to be a balance, in the said Peter’s hands, more than sufficient to cover Cocke’s debt to the Company ; a method adopted by the said Peter in the account current, of date the 10th of September, 1778.
    To this report the defendants excepted, ■“1st. Because the commissioner himself •states, that the only document exhibited, for his government, was Walter Peter’s account, exhibited to the executors of the said James Cocke many years ago, and yet he undertakes to change and new model that account, many years after it was rendered ; against every rule of evidence, (from which, it is plain, that no account, if relied upon at all, can be garbled, but that it must be admitted or rejected in toto,) and against the conviction of the executors themselves, (more conversant with their testator’s affairs than the commissioner can be,) who did not dispute the account, but did actually, in part, discharge it; 2dly. Because the commissioner entirelj' disregards Joshua Poythress’s settlement of this account, and his acknowledgment thereof, under his own hand, although such settlement was obligatory on the said Poy-thress, as the representative of the said Cocke, and on every representative of him ; and, 3dly. Because the commissioner, after having struck a fancied balance against the said Walter Peter’s estate, gives interest upon it; although such balance is one of his own creation, and was never adjusted until the time of his own report.”
    The county Court overruled the exceptions, and confirmed the report; which decree was affirmed by Chancellor Taylor.
    In this Court, the cause was argued in the reportor’s absence.
    
      
      Evidence — Production of Accounts of Adversary-Must Be Taken asa Whole. — Wben a party calls for tbe production of and uses tbe writing or account of bis adversary, tbe whole writing, tbe whole account, debits and credits, is thus made evidence in tbe case. It cannot be garbled: one side, or showing of it merely cannot be used for tbe hurt of one party to tbe benefit of another. Rowan v. Chenoweth, 49 W. Va. 287, 38 S. E. Rep. 546, citing the principal case as authority for tbe proposition.
    
   Wednesday, March 17th, 1813, the president pronounced the Court’s opinion ; “that the decree of - the Superior Court of Chancery is erroneous: therefore, *the same is reversed with costs; and this Court, proceeding, &c. is of opinion, that when a party claims to charge another, by virtue of an account rendered, he must take that account altogether, and not garble or alter it, unless he can surcharge or falsify the same, either by showing errors in calculation, or by showing, from other testimony, that it is incorrect, as to the amount charged, or credited; or by showing, in the present case, that there was no agreement, or understanding, that the balances should be turned into tobacco, and then that tobacco turned again into money; without which, although it makes a material difference in the result, the accounts rendered must, nevertheless, be taken in the manner in which they are stated, where such accounts, alone, are relied on to support the charge.

“The Court, however, is of opinion, that, as the county Court could have directed the books of Peter, and of Hood’s Company, to have been laid before the commissioner, in order to see whether the accounts, when raised, were extended in tobacco, or whether that was an after thought; (in the former of which events, a presumption would arise, that such was the original understanding and intention of the parties, unless proof was exhibited to the contrary: and, in the latter, that presumption would be done away; and the commissioner’s report, consequently, be justified, or not, according as the fact should turn out;) but if nothing should appear to show that the accounts were expressly extended in tobacco, and that a given sum, in that medium, was due on the 19th of December, 1781; yet, as it appears that more tobacco has since been paid than the amount of that debit, with interest, (exclusive of 121. 5d., paid in money,) the appellees ought to have had an opportunity of showing, that this second change of a tobacco debt into money, was not a mode of settlement agreed on; either by express proof to the contrary; or by proving those payments by other testimony than the account ^thereof rendered; so as to oblige the appellants to prove such agreement.

‘ ‘The Court is, therefore, of opinion, that the accounts, rendered and relied on, did not warrant the report of the commissioner in this cause; and that the decree of the said county Court is also erroneous; which, therefore, is hereby reversed, with costs; and the cause is remanded to'the said Court of Chancery, and from thence to the county Court, with instructions to direct an inquiry to be made, and an account to be taken, agreeably to the above principles, in order to a final decree.  