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The Duty to Account

The Duty to Account

Development and Principles

By J A Watson

CONTENTSREVIEWS

This book investigates the history of the modern doctrine of account, and by that history, seeks to identify some of the principles and premises which help explain the application of, and which underlie, the action today. The common law account, and its successor in equity, is over 800 years old. There does not appear to have been any work devoted to an examination of that history published in that time. The focus on the book is on the question 'who is an accountable party'? The area of law focused on is common law and equitable remedies, namely, the account (including the subsidiary principle, the 'account of profits').


CONTENTS

Foreword by John Sheahan QC
Preface
Acknowledgments
About the Author
Guide to References
Abbreviations
Table of Authorities
Table of Statutes

1. Introduction

Outline
Literature
The position today
Accounting outside the scope of the book
Vulgar Latin

PART I Development of the Account

2. Early Circumstances

Tenure
The Exchequer
The first accounting parties
A discursion: tallies
The Exchequer process of accounting
Early records of Exchequer

3. Recognition at Law

Early reports of account cases
The Barons' Wars
The Statute of Marlborough 1267
County Extradition
Statute of Westminster II
The form of the writ of account

4. Context and Competing Influences

Wager of law
Reforms under Henry II
Disseisin
Recognition
Trespass and Damages
Slade's Case
Coinciding writs
Possession

PART II Accounting

5. Outline: Taking Accounts

Two stages of account
Quod computet
Process
According to equity and justice
Knowledge
The origins of profits
Wilful default of duty (proceeds that ought to be obtained)
Quod recuperet

PART III Accounting Parties

6. Accounting Parties at Law

Accounting parties from Westminster II
Bailiffs
Receiver ad computandum
Bailiff or receiver 'ad merchantizandum'
The constructive receiver
Partners
Joint tenants or tenants in common
Executors
Employees
Bailees
Factors
Agents
Recovery of capital (failure of consideration)
Misrepresentation, deceit and fraud
Mistake
Usurpation of an office
Receipt to benefit third parties
A to B to the use of C
Common law trade marks (passing off)
The rights of the Crown
The position reached

7. Accounting Parties in Equity

The development of the jurisdiction
The breadth of account in equity
True bills of account
Judicature accounts
The early trust: Common law use of estates in land
Development of the trust
Constructive trustees
Fiduciaries and powers
Confidential information
Theft

8. Principles of the Duty to Account

Recapitulation
Ad opus
Certain contentions 
Further matters

9. Outline: Money Had and Received

Before Moses
Moses v Macferlan

10. Outline: Account and Wrongs

"Privity"
Fitzherbert, Brooke, Tottenham and Coke
Privity in fact or law
Waiver of tort
Account for torts or breach of contract
Attorney-General v Blake
The wrong question

11. Concluding Note

Bibliography

Index


REVIEWS

At its very outset, The Duty to Account claims that its purpose “is to invite a larger consideration of the doctrine of account, including having regard to its long history and modern utility, as the premises and foundation of many and varied relationships recognised in law and equity today”. It lives up to this promise: the book is a long overdue consideration of the nature and history of account. ...
         Watson’s book, … is an original and valuable contribution to scholarship, which will provoke thought amongst scholars and legal practitioners alike. … the book is a thought-provoking and welcome foray into an important and interesting area, with the potential to blow open a whole series of modern doctrinal and legal historical debates. Read full review...

Andreas Televantos , Cambridge Law Journal, 2017

The book demonstrates that the remedy of an account is manifestly under-utilised. … there can be no doubt as to the extremely high level of learning and scholarship which underlies the discussion of the historical development of the principles in question. … This is another exceptional work from The Federation Press which surely must now be considered as Australia’s leading legal publisher. It constantly publishes work of the highest quality and standard which leads and develops the law. This work is no exception. Read full review...

Queensland Law Reporter 14 October 2016 [2016] 40 QLR

   

Published 28 September 2016
Publisher The Federation Press
Hardback/240pp
ISBN 9781760020668
Australian RRP $99.00
International Price $90.00
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