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Vol 21 No 11 Nov/Dec 2016

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The Duty to Account: Development and Principles

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ISBN13: 9781760020668
Published: September 2016
Publisher: The Federation Press
Country of Publication: Australia
Format: Hardback
Price: £55.99



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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').

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Subjects:
Other Jurisdictions , Australia
Contents:
1. INTRODUCTION
Outline
Literature
The position today
Accounting outside the scope of the book
Vulgar Latin

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

5. AN OVERVIEW: TAKING ACCOUNTS
Two stages of account
Quod computet
Accounts according to equity and justice
The process
The origins of profits
Proceeds that ought to be obtained (wilful default of duty)
Quod recuperet

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
The development of the trust
Constructive trustees
Fiduciaries and Powers
Confidential information
Theft

8. PRINCIPLES OF ACCOUNT
Recapitulation
Ad opus
Principles of the Duty to Account
The remainder of the essay

9. MONEY HAD AND RECEIVED
Before Moses
Moses v Macferlan

10. ACCOUNT AND WRONGS
Purported limitations to the account: '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 REMARKS

12. BIBLIOGRAPHY

Texts
Articles
Cases Cited
Statutes