4. 1. An account may be stated by a man and his wife of the one part, and a third person; and unless there is an express promise to pay by the hushand, Foster v. Allanson, 2 T. R. 483, the action must be brought against hushand and wife. Drue v. Thorne, Aleyn, 72. A plaintiff cannot recover against a defendant upon an account stated by him, partly as administrator and partly in his own private capacity. Herrenden v. Palmer, Hob. 88. Persons wanting a legal capacity to make a contract cannot, in general, state an account; as infants, Truman v. Hurst, 1 T. R. 40; and persons non compos mentis.
5. A plaintiff may recover on an account stated with the defendant, including debts due from the defendant alone, and from the defendant and a deceased partner jointly. Riebards v. Heather, 1 B.& A. 29, and see Peake's Ev. 257. A settlement between partners, and striking a balance, will enable a plaintiff to maintain an action on such stated account for the balance due him, Ozeas v. Johnson, 4 Dall. 434; S. C. 1 Binn. 191; S. P. Andrews v. Allen, 9 S. & R. 241; and see Lamelere v Caze, 1 W. C.C.R. 435.
6. – 2. It is sufficient, although the account be stated of that which is due to the plaintiff only without making any deduction for any counter-claim for the defendant, Styart v. Rowland, 1 Show. 215. It is not essential that there should be cross demands between the parties or that the defendant's acknowledgment that a certain sum was due from him to the plaintiff, should relate to more than a single debt, or transaction. 6 Maule & Selw. 65; Knowles et al. 13 East, 249. The acknowledgment by the defendant that a certain sum is due, creates an implied promise to pay the amount. Milward v. Ingraham, 2 Mod. 44; Foster v. Allanson, 2 T. R. 480.
7. – 3. A count on an account stated is almost invariably inserted in declarations in assumpsit for the recovery of a pecuniary demand. See form, 1 Chit. PI. 336. It is advisable, generally, to insert such a count, Milward, v. Ingraham, 2 Mod. 44; Trueman v. Hurst, 1 T. R. 42; unless the action be against persons who are incapable in law to state an account. It is not necessary to set forth the subject-matter of the original debt, Milward v. Ingraham, 2 Mod. 44; nor is the sum alleged to be due material. Rolls v. Barnes, 1 Bla. Rep. 65; S. C. 1 Burr. 9.
8. – 4. The count upon an account stated, is supported by evidence of an acknowledgment on the part of the defendant of money due to the plaintiff, upon an account between them. But the sum must have been stated between the parties; it is not sufficient that the balance may be deduced from partnership books. Andrews v. Allen, 9 S.&. R. 241. It is unnecessary to prove the items of which the account consists; it is sufficient to prove some existing antecedent debt or demand between the parties respecting which an account was stated, 5 Moore, 105; 4 B.& C. 235, 242; 6 D.& R. 306; and that a balance was struck and agreed upon; Bartlet v. Emery, 1 T. R. 42, n; for the stating of the account is the consideration of the promise. Bull. N. P. 129. An account stated does not alter the original debt; Aleyn, 72; and it seemsnot to be conclusive against the party admitting the balance against him. 1 T. R. 42. He would probably be allowed to show a gross error or mistake iu the account, if he could adduce clear evidence to that effect. See 1 Esp. R. 159. And see generally tit. Partner's; Chit. Contr. 197; Stark. Ev. 123; 1 Chit. Pl. 343.
9. In courts of equity when a bill for an account has been filed, it is a good defence that the parties have already in writing stated and adjusted the items of the account, and struck a balance; for then an action lies it law, and there is no ground for the interference of a court of equity. 1 Atk. 1; 2 Freem. 62; 4 Cranch, 306; 11 Wheat. 237; 9 Ves. 265; 2 Bro. Ch. R. 310; 3 Bro. Ch. R. 266; 1 Cox, 435.
10. But if there has been any mistake, ommision, fraud, or undue advantage, by which the account stated is in fact vitiated, and the balance incorrectly fixed, a court of equity will open it, and allow it to be re-examined; and where there has been gross fraud it will direct the whole account to be opened, and examined de novo. Fonbl. Eq. b. 1, c. 1 3, note (f); 1 John. Ch. R. 550.
11. Sometimes the court will allow the account to stand, with liberty to the plaintiff to surcharge and falsify it; the effect of this is, to leave the account in full force and vigor, as a stated account, except so far as it can be impugned by the opposing party. 2 Ves. 565; 11 Wheat. 237. See Falsification; Surcharge.