WILLIAMS VS. SAVAGE MANUFACTURING CO. 313

My opinion, therefore, upon this part of the case is, that
though the settlement will not be set aside as fraudulent, the
plaintiff should be allowed to surcharge and falsify the account
upon which, as I think, it was made; and the next question is,
to what extent has he succeeded in proving the errors specified
in his bill, for to these he must be restricted. 2 Daniels^ Ch.
Pr., 765.

The court is to take the account as it is stated, and the onus
probandi is upon the party having liberty to surcharge and fals-
ify. If he can show an omission, he may surcharge; and if a
wrong charge is made against him in the account, it will be
stricken out, which is a falsification.

To what extent, then, has the plaintiff succeeded in pointing
out errors of either description in the account, is the question.

It is first alleged, that in the account between the Savage
Rail Road Company and the defendant, which is one of the
elements of the account 1.1., upon which the statement was
made, the defendant was prejudiced by allowing him dividends
only on the amount of the stock held by him in the rail road
company, which was $12,000, instead of on the whole capital
of $15,000. My opinion upon this is, that as that account
was stated, the whole dividends should have been credited. It
is an account between the two companies, and not between the
complainant, as a stockholder in the rail road company, and the
defendant. The road is charged with all the advances made to
it by the defendant, and not with such proportion thereof as
would correspond with the complainant's interest in the road.
Surely, if the complainant is considered the sole proprietor of
the road, so far as to charge him with all advances to it, he
should be regarded in the same light with reference to credits.

I am not satisfied, however, that the defendant continued to
use the road to the 1st of July, 1843, as alleged in the bill.
The answer expressly denies it; and the proof offered in oppo-
sition to the answer I do not deem sufficient. The account,
therefore, in this respect will stand, unless further and fuller
proof shall be introduced.

The charge of ten per cent. on the cash balances cannot be
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