that the court may hear the evidence without a reference, and this is sometimes done, where the account is short and simple and not complex or intricate.108 The scope of the inquiry is determined by the order of reference and the pleadings,109 and under the United States equity rule the parties must bring in their accounts in the form of debtor and creditor. Any of the parties not satisfied may then examine the accounting party viva voce, or on interrogatories, or by deposition, as the master may direct.110 This practice is also followed in many of the state courts;111 and after the accounts are submitted, evidence is usually received only as to the matters thus shown to be in dispute.112 The accounting party has the burden of discharging himself from any charge that appears against him on his own statement of account,113 and generally of proving any credit that he claims.11 He is also frequently required to produce vouchers;115 but,

to reference, Kimberly v. Arms, 129 C. S. 512, 9 Sup. Ct. 355; Chicago &c. Co. v. Tompkins, 176 U. S. 167, 20 Sup. Ct. 336; Western U. Tel. Co. v. American Bell Tel. Co. 125 Fed. 342.

***Bryan v. Morgan, 35 Ark. 113; Emery v. Mason, 75 Cal. 222, 16 Pac. 894; May v. May, 19 Fla. 373; Standish v. Babcock, 48 N. J. Eq. 386, 22 Atl. 734; Darby v. Gilligan, 43 W. Va. 755, 28 S. E. 737; but see, Moffett v. Hanner, 154 Ill. 649, 39 N. E. 474; Beale v. Beale, 116 Ill. 292, 5 N. E. 540.

Calvert v. Carter, 18 Md. 73; Izard v. Bodine, 9 N. J. Eq. 309; Remsen v. Remsen, 2 Johns Ch. (N. Y.) 495; Phillips v. Belden, 2 Edw. Ch. 1; Purdy v. Rutter, 3 W. Va. 262; but see, Northern Grain Co. v. Pierce, 13 S. Dak. 265, 83 N. W. 256.

"United States Eq. Rule 79; 2 Beach Mod. Eq. Pr., § 693; Foote v. Silsby, 3 Blatchf. (U. S.) 507, 9 Fed. Cas. No. 4920.

Patterson v. Johnson, 113 Ill. 559; Remsen v. Remsen, 2 Johns. Ch. (N. Y.) 492; Kirkman v. Van

lier, 7 Ala. 217; Callender v. Colegrove, 17 Conn. 1.

112 Myers v. Bennett, 3 Lea (71 Tenn.) 184; see also, Purdy v. Rutter, 3 W. Va. 262; Patterson v. Johnson, 113 Ill. 559.

113 Williamson v. Downs, 34 Miss. 402; 2 Dan. Ch. Pr. 880, where the defendant required to account, occupies a fiduciary relation the burden is held to be upon him to show the performance of his trust; Marvin v. Brooks, 94 N. Y. 71, but no final decree can ordinarily be rendered unless the evidence shows that something is due; Slater v. Arnett, 81 Va. 432; Peeler v. Lathrop, 48 Fed. 780, and the burden of accounting is not always on the defendant; Davenport v. Schutt, 46 Iowa 510; Pullman &c. Co. v. Central &c. Co., 34 Fed. 357.

114 Thatcher v. Hayes, 54 Mich. 184, 19 N. W. 946; Crawford v. Norris (Ark.), 12 S. W. 707; New York Bay &c. Co. v. Buckmaster (N. J.), 33 Atl. 819; Silverthorne v. Brands, 42 N. J. Eq. 703, 11 Atl. 328.

115 Halstead v. Tyng, 29 N. J. Eq. 86; Davenport v. Davenport, 1 Sim.

unless he occupies a fiduciary relation, if entries in his own books are used to charge him, it has been held that he may use entries in the same book in his discharge.116 Objections to evidence taken before the master should be made before him.117 After he has made his report the case is usually heard by the court on such report, but it may be recommitted to him to be restated and even to hear further evidence,' and it has been held that relevant evidence as to matters occurring after his report and before the final hearing is admissible on such hearing.119

§ 1612. Accounting in equity-Answer as evidence.-In equity a somewhat peculiar practice prevails in regard to the use of an answer under oath as evidence. When the bill calls for a discovery and answer as to the state of the account, without waiving oath, a responsive answer under oath is prima facie evidence of such matter therein contained, for, as well as against, the defendant.120 But this is true only so far as the answer is responsive.121 The general rule in the Federal courts, and in most other jurisdictions as well, is that such an answer requires the allegations of the bill to which it is responsive, to be sus

tained by the testimony of two witnesses or one witness and corroborating circumstances.122

$1613. Accounting under the code.-An action for accounting under the code of civil procedure is essentially an equitable one, and the procedure and rules of evidence are in the main the same as in suits in equity for an accounting.123 The fact that the same court usually has both law and equity jurisdiction and is empowered to give complete relief in the one proceeding12+ where it rightfully assumes jurisdiction, and the fact that there are different statutory provisions, will be found in some respects to vary the old system of procedure in equity. The general rule under the code is that the actual facts should be alleged, and such relief may then be granted, whether legal or equitable, as the allegations and proof justify.125 It is not our purpose to treat of procedure generally, and, as decisions from code states are cited in considering the subject of accounting in equity, it is unnecessary to consider the subject at length in this connection.

Peeler v. Lathrop, 48 Fed. 780, 788, and authorities cited. This rule has not always been applied without modification, however, and it may be doubted whether it would be uniformly applied in cases of accounting.

Smith v. Smith, 88 Cal. 572, 26 Pac. 356; Garner v. Reis, 25 Minn. 475.

Virginia &c. Co. v. Hale, 93 Ala. 542, 9 So. 256; Cook County v. Davis, 143 Ill. 151, 32 N. E. 176; Brooks v. Goodwin, 70 N. H. 281, 47 Atl. 255; Meyer v. Garthwaite, 92 Wis. 571, 66 N. W. 704; Alpaugh v. Wood, 45 N. J. Eq. 153, 16 Atl. 576.

Kayser v. Mougham, 8 Colo. 232, 6 Pac. 803; Coffee v. Williams,

103 Cal. 550, 37 Pac. 504; Williams v. Slote, 70 N. Y. 601; Dehority v. Nelson, 56 Ind. 414; Dougherty v. Gouff, 23 Neb. 105, 36 N. W. 351; Rippe v. Stogdill, 61 Wis. 38, 20 N. W. 645; Buist v. Melchers, 44 S. Car. 46, 21 S. E. 449; Dunn v. Johnson, 115 N. Car. 249, 20 S. E. 390; Teasley v. Bradley, 110 Ga. 497, 35 S. E. 782; Seattle Nat. Bank v. School Dist., 20 Wash. 368, 55 Pac. 317; Bliss Code Pl. (3d ed.), §§ 161, 162; 2 Woolen Tr. Proc. (Indiana), § 3178. It should be observed, however, that even under the code the complaint should proceed on a definite theory and that a total failure to prove that theory will generally prevent a recovery thereon.

§ 1614. Generally.-It is said by the Supreme Court of the United States that "where one has had the peaceable, undisturbed, open possession of real or personal property, with an assertion of his ownership, for the period which, under the law, would bar an action for its recovery by the real owner, the former has acquired a good title." The question of adverse possession, however, most often arises in regard to real property, and it is generally held that where adverse possession for the requisite period is shown, the title thus acquired is as effective, either in support of a cause of action or a defense, as a title by deed. In most jurisdictions color of title is unnecessary, but in nearly, if not all, claim of title is necessary, and color of title may have an important bearing upon the question of constructive possession and on the extent of the right acquired. So, in this connection, the question of good faith often becomes important. Ordinarily, however, the two essential elements are the possession and the intent; or, in other words, the possession must usually be hostile and exclusive, open, notorious, continuous for the requisite period, and under claim of right.2

1 Campbell v. Holt, 115 U. S. 620, of limitations, as in Vanduyn v. 6 Sup. Ct. 209, 211.

2 See Worthley v. Burbanks, 146 Ind. 534, 45 N. E. 779, and numerous authorities cited; Tyee Consol. Min. Co. v. Langstedt, 121 Fed. 709, 712, and federal decisions cited, and note in 28 Am. St. 158-162. It is sometimes held, however, under statutes

Hepner, 45 Ind. 589, that the true owner may be barred no matter whether the defendant's possession has been under claim of title and adverse or not, and there need be no express claim of title by word of mouth. See generally, leading article in 53 Cent. Law Jour. 482.

§ 1615. Burden of proof.-The burden of establishing adverse possession is upon the party who relies upon it. He must, ordinarily, show the existence of every element necessary to constitute adverse possession, and it has been held that this includes the burden of showing the extent of his possession." But where a prima facie case of adverse possession is made, in order to avoid it, the burden of going forward with evidence has been held to be upon the other party.

§ 1616. Question of law or fact.-Adverse possession in most cases may be said to be a mixed question of law and fact, or, in other words, it is usually a question of fact for the jury under proper instructions from the court. It may be said to be a question of fact or a mixed question of law and fact in most cases because it is for the jury to determine, where there is dispute as to the facts,-whether the facts exist which are necessary to constitute adverse possession. But the question as to what is necessary in law to constitute adverse possession is a question of law, and where there is no dispute as to the facts and reasonable inferences, or if those most favorable to the claimant

Beasley v. Howell, 117 Ala. 499, 22 So. 989; Tuffree v. Polhemus, 108 Cal. 670, 41 Pac. 806; Kurz v. Miller, 89 Wis. 426, 62 N. W. 182; Evans v. Welch, 29 Colo. 355, 68 Pac. 776; McConnell v. Day, 61 Ark. 464, 33 S. W. 731; Nicklace v. Dickerson, 65 Ark. 422, 46 S. W. 945; Rowland v. Updike, 28 N. J. L. 101; Bryan v. Spivey, 109 N. Car. 57, 13 S. E. 766; Smith v. North Canyon &c. Co., 16 Utah 194, 52 Pac. 283; Herman v. Stearns (W. Va.) 27 S. E. 601; Maxwell v. Cunningham, 50 W. Va. 298, 40 S. E. 499.

'Weeping Water v. Reed, 21 Neb. 261. 31 N. W. 797; DeHaven v. Landell, 31 Pa. St. 120; Kennebeck Purchase v. Call, 1 Mass. 483; Robinson v. Allison, 97 Ala. 596, 12 So. 382, 604; Howard v. Howard, 17 Barb. (N. Y.) 663; Smith v. Estill, 87 Tex. 264, 28 S. W. 801; DeFrieze V. Quint, 94 Cal. 653, 30 Pac. 1, 28 Am. St. 151; Digman v. Nelson, 26 Utah 186, 72 Pac. 936.

"Braxton v. Rich, 47 Fed. 178; Cantey v. Platt, 2 McCord (S. Car.) 260.

" Shropshire V. Shropshire, 7 Yerg. (Tenn.) 164; Miller v. Bumgardner, 109 N. Car. 413, 13 S. E. 935, avoidance on ground of disability; see also, Margoon v. Davis, 84 Me. 178, 24 Atl. 809; Highstone v. Burdette, 54 Mich. 329, 20 N. W. 64.

'Kennedy v. Townsley, 16 Ala. 239; Jackson v. Joy, 9 Johns (N. Y.) 102; Broxson v. McDougal, 70 Tex. 64, 7 S. W. 591.

8

9 Haney v. Breeden, 100 Va. 781, 42 S. E. 916; Barnes v. Light, 116 N. Y. 34, 22 N. E. 441; Flannery v. Hightower, 97 Ga. 592, 25 S. E. 371; Jangraw v. Mee, 75 Vt. 211, 54 Atl. 189; Harrison v. Spencer, 90 Mich. 586, 51 N. W. 642; Wheeler v. Laird, 147 Mass. 421, 18 N. E. 212; Hopkins v. Deering, 71 N. H. 353, 52 Atl. 75; Bradstreet v. Huntington, 5 Peters (U. S.) 402, and authorties cited in following note.