JUDGMENT 1. The circumstances which led to the litigation out of which the present appeal arises, were minutely investigated in the Court below and have been discussed before us at great length. They are by no means very complicated and may be briefly outlined. The Plaintiff, Mohesh Chandra Bose, who is the Appellant before this Court, is an engineer by profession and in 1879 retired from the service of the Government. The Defendant, Radha Kishore Bhattacharya, who is the Respondent before this Court, is a member of the legal profession and for many years has been one of the leading practitioners in the District Court of Patna. For several years prior to the year 1894, the Plaintiff and the Defendant were on terms of closest intimacy; and it appears that the Plaintiff used to avail himself of the advice and experience of the Defendant in making investments of his money. On the 23rd June 1888, a mortgage was executed in favour of the Plaintiff and of Srimati Kusum Kumari Debi, the wife of the Defendant, by one Radha Krishna Lal Sund. The sum secured by the mortgage was Rs. 25,000, half of which belonged to the Plaintiff and half to the Defendant. On the 26th and 29th June following, two supplemental bonds were executed the effect of which was to furnish additional security for the sum advanced. In 1890, the mortgagor was sued and on the 17th March of that year a decree was obtained against him for over Rs. 36,000. On the 2nd March 1894, the Plaintiff executed a power-of-attorney in favour of the Defendant and two other persons by which they were authorised to execute the decree, to manage the properties which had already been purchased in execution proceedings taken on the footing of that decree and generally to manage and look after his affairs. It is alleged on behalf of the Plaintiff that the Defendant has enforced the decree under the authority conferred on him by this power of-attorney and that various properties have been acquired by him for his own benefit and for the benefit of the Plaintiff. It is an admitted fact that in spite of all these proceedings, the whole debt due under the mortgage has not been realised and that, in substance, the transaction has proved to be an unprofitable bargain. It is an admitted fact that in spite of all these proceedings, the whole debt due under the mortgage has not been realised and that, in substance, the transaction has proved to be an unprofitable bargain. The Plaintiff asserts that this is due mainly to the fact that the mortgagor had not a good title to the properties covered by the security bonds and he attributes this to the negligence, if not the fraud, of the Defendant, who, according to him, was employed as a pleader to make this investment on behalf of the Plaintiff. The Plaintiff consequently asks for an account from the Defendant; but although he charges the Defendant with wilful neglect and default he does not expressly ask for damages on that account. 2. The Defendant resisted the claim substantially on the ground that he was not an agent of the Plaintiff, that he was not entrusted with the money of the Plaintiff to make an investment on his behalf, that they were in truth joint mortgagees and that although the Plaintiff may have asked and obtained his advice, he did not rely upon it but acted upon the result of his own enquiry and information. The Defendant further alleged that he was not liable to render any account, that the Plaintiff had already Inspected whatever accounts existed and that if the Defendant was ever liable to be called upon to render an account, such account had been rendered. 3. The learned Subordinate Judge has found upon the evidence that the parties did not stand in the relation of principal and agent. He has also held that the Defendant did submit accounts to the Plaintiff which were examined and Inspected by the latter. As regards the charges of fraud, misconduct and wilful neglect in connection with the loan transaction as also the execution proceedings, the Subordinate Judge has found that they were utterly groundless. 4. He has also held that the Defendant did submit accounts to the Plaintiff which were examined and Inspected by the latter. As regards the charges of fraud, misconduct and wilful neglect in connection with the loan transaction as also the execution proceedings, the Subordinate Judge has found that they were utterly groundless. 4. The Plaintiff has now appealed to this Court and on his behalf the decision of the Subordinate Judge has been assailed on four grounds, namely, first, that the Defendant was the agent of the Plaintiff in respect of the mortgage transaction; secondly, that the Defendant was the agent of the Plaintiff in respect of the execution proceedings; thirdly, that the Defendant was liable for the loss which bad resulted from his negligence if not fraud; and fourthly, that he was liable to render an account of whatever property had come into his bands in the course of the execution proceedings. It has been argued on the other hand on behalf of the Defendant Respondent, first, that he was not the agent of the Plaintiff in respect of the mortgage transaction; secondly, that he was the agent of the Plaintiff under the power-of-attorney of 1894 and liable to account for all sums and properties received there under but that such account had been rendered. In reply it was contended on behalf of the Plaintiff-Appellant, first, that the accounts which are alleged to have been rendered are not settled accounts and secondly, that even if they are settled accounts, they ought to be re-opened on the grounds of errors. 5. We have carefully considered the arguments addressed to us on both sides and examined the evidence, and have come to the conclusion that there is no foundation for any of the contentions advanced on behalf of the Appellant. 6. As regards the position of the parties in relation to the mortgage transaction, there cannot be the remotest doubt that the Defendant was not the agent of the Plaintiff. The case for the Plaintiff was that he made over Rs. 12,500 to the Defendant to be invested upon good security. In our opinion this case has entirely failed. The evidence shows that early in 1888 the Plaintiff had received back money from one of his debtors and was in possession of a large sum which he was anxious to invest. 12,500 to the Defendant to be invested upon good security. In our opinion this case has entirely failed. The evidence shows that early in 1888 the Plaintiff had received back money from one of his debtors and was in possession of a large sum which he was anxious to invest. He appears to have communicated his wish to the Defendant and asked for his help in the matter. On the 21st June 1888, the Defendant wrote to Jadunath a common friend of the parties, and asked him to inform the Plaintiff that the transaction with Radha Kishen had been settled and that the Plaintiff, if he desired to make an investment, should immediately come with money to Bankipur. The Plaintiff alleges that this was the first intimation he received of the intended mortgage by Radha Kishen. We are satisfied that this is untrue. The evidence makes it abundantly clear that there must have been previous correspondence between the parties on the subject and we think it is beyond doubt that the Plaintiff must have been in Bankipur previously to the end of June to negociate this loan. We have 1c upon the testimony of Moulvi Khoda Bux, Moulvi Ahia and Durbari Lal that the Plaintiff was in Bankipur about a month before the mortgage bond was executed and that he made enquiries as to the sufficiency of the security offered. We see no reason to distrust this testimony. We are further unable to accept the statement of the Plaintiff that when he went with the money to Bankipur, he placed it In the hands of the Defendant to make the investment and to select the security for him. An examination of the evidence shows that the Plaintiff must have been present when the bond was executed and the money was paid to the debtor or his creditor. We are unable to accept his allegation that he was ignorant of the language in which the bond was. written as be himself is obliged 10 admit that he passed an examination in Hindustani. Upon a careful examination of the whole evidence we are satisfied beyond any doubt that, although the Plaintiff may have asked for, and obtained the advice of the Defendant, he did not rely upon It, he nude his own inquiry and did not treat the Defendant as his agent, or solicitor employed to make the Investment, on his behalf. Upon a careful examination of the whole evidence we are satisfied beyond any doubt that, although the Plaintiff may have asked for, and obtained the advice of the Defendant, he did not rely upon It, he nude his own inquiry and did not treat the Defendant as his agent, or solicitor employed to make the Investment, on his behalf. It is impossible under these circumstances to say that the Defendant is liable to the Plaintiff for the loss which has resulted from the insufficiency of the security. It is not necessary for our present purpose to determine the functions of an agent; it is enough to hold that a person does not become an agent on behalf of another merely because he gives him advice in matters of business. As is said by Chancellor Kent in his Commentaries, Vol. II, 612, agency is founded upon a contract, either express or implied, by which one of the parties confides to the other the management of some business to be transacted in his name or on his account and by which the other assumes to do the business and to render an account of it. The essence of the matter is that the principal authorities the agent to represent or act for him in bringing, or to aid in bringing, the principal into contractual relation with a third person. The element which differentiates an agent from a person in the position of the Defendant is the recognition of the derivative authority of the agent. We are unable to hold, as we have already stated that the Defendant was authorised by the Plaintiff to act on his behalf in relation to the mortgage transaction. We may further observe that-, even if some reliance was placed by the Plaintiff on the Defendant, that would not necessarily make the Defendant liable to the Plaintiff for loss incurred by reason of the insufficiency of the security. It is neither alleged nor proved that there was any deceit on the part of the Defendant and in the absence of deceit it is impossible on fix liability on him. This view is supported by the decision in the case of Dartnall v. Howard 4 Bar. & Cress. 345 (1825). It is neither alleged nor proved that there was any deceit on the part of the Defendant and in the absence of deceit it is impossible on fix liability on him. This view is supported by the decision in the case of Dartnall v. Howard 4 Bar. & Cress. 345 (1825). In that case it was pointed out by Chief Justice Abbot that the mere fact the Plaintiff employed the Defendant in laying out or investing a sum of money and that the Defendant undertook and promised to perform and fulfil that duty and that injury resulted by reason of the Insufficient security is not sufficient to make the Defendant liable. The learned Chief Justice observed : "can we say that it is the absolute duty of any person so employed without payment and without remuneration, can we under the circumstance say that it is his absolute duty not to take a securisy of an insufficient nature? The only duty that is imposed under such retainer and employment as is here mentioned is a duty to act faithfully and honestly and not to be gulity of any gross or corrupt neglect in the discharge of that which he undertakes to do so; but a man may when acting most faithfully and honestly happen to take insufficient security without gross or culpable negligence on his part: he may have been misled, he may have been deceived, be may have taken such care as an ordinary man would take without regard to the subject-matter entrusted to him and yet doing all that, his endeavours may have failed and it may so happen the security may without his knowledge and against his will, have turned out to be insufficient." In the present instance the Plaintiff himself invested in the mortgage transaction an equal amount with the Defendant and there is no foundation for the suggestion that there was either gross negligence or deceit on his part. It was assumed in the argument addressed to us on behalf of the Appellant that if it could be established that the Defendant had taken part in the mortgage transaction on behalf of the Plaintiff and that loss had resulted to the Plaintiff from the transaction the Defendant would be liable. This, however is clearly unfounded. It was assumed in the argument addressed to us on behalf of the Appellant that if it could be established that the Defendant had taken part in the mortgage transaction on behalf of the Plaintiff and that loss had resulted to the Plaintiff from the transaction the Defendant would be liable. This, however is clearly unfounded. It is nor, disputed that a solicitor who has been employed as such in a transaction for investment of money may be liable for negligence in lending money on insufficient, security. [Craig v. Watson 8 Bevan. 427 (1845) and Pretry v. Tawke 3 T. L. R. 845]. But it does not follow that the liability of a solicitor does not vary with the extent of the part, he is employed to take in the transaction. As was pointed out by Mr. Justice Kekewich in Dooby v. Watson 39 Ch. D. 179, 185 (1888) a solicitor in a mortgage transaction may be employed either (1) to invest in a particular mortgage, or (2) to find securities to be approved by the client and then invest the money, or (3) to find securities and invest the money,' the client taking little or no part in the business. No relation of trustee and cestui que trust exists between the parties in the first two events and the liability is evidently quite different in the third case from that in the other two. The case of the Plaintiff as laid in the plaint and as sought to be made out in the Court below was that the Defendant acted as legal adviser and that his liability fell within the last of the three classes just mentioned. That case, however, has clearly failed. The Plaintiff Is consequently not entitled to make the Defendant liable upon that footing. The classification stated by Mr. Justice Kekewioh is well established and based on intelligible grounds. See Mart v. Lewis 4 Ir. Eq. 212, Power v. Power 13 L. R. Ir 281 and Hamilton v. Line 25 L. R. Ir. 188, In the first of these oases, the Plaintiff gave a sum of money to a firm of solicitor to invest upon freehold security; they found a security and invested the money upon it. The security turned out valueless. Eq. 212, Power v. Power 13 L. R. Ir 281 and Hamilton v. Line 25 L. R. Ir. 188, In the first of these oases, the Plaintiff gave a sum of money to a firm of solicitor to invest upon freehold security; they found a security and invested the money upon it. The security turned out valueless. It was ruled by Vice-Chancellor Chatterton that the giving of the money to the solicitor for the purpose of general investment did not in itself create the relation of trustee and cestui que trust so as to make the solicitor liable as trustee for a deficiency in the security and as this was a single isolated transaction, an action for an account as between principal and agent could not be maintained as against the solicitor. In the second case, it was ruled by the same learned Judge that where there is not merely an agency between the parties but a superadded fiduciary relation, the remedy of the principal who is then also)] the cestui que trust is not one arising merely from contract, or duty springing from such contract where a common law liability would alone exist, but is one to be dealt with on the equitable relation of trustee and cestui que trust. The third case was one which fell within the third of the three classes mentioned by Mr. Justice Kekewich in Dooby v. Watson 89 Ch, P. 17P, 186 (1888); but It is important as showing that the decision would be different If the Plaintiff is shown to have known and approved of the Investment. In the case before us, the evidence proves that even though the Plaintiff may have obtained the advice of the Defendant, he knew and approved of the security, and consequently cannot make the Defendant responsible. On these grounds we must hold that so far as the mortgage transaction is concerned, the Plaintiff cannot successfully call upon the Defendant to recoup him any loss which he may have sustained by reason of the Insufficiency of the security. 7. As regards the liability of the Defendant under the power-of-attorney executed in his favour on the 2nd March 1894, it has not been denied by his learned vakil that he was liable to render an account; but he took up the position that accounts had been rendered and had been accepted by the Plaintiff. 7. As regards the liability of the Defendant under the power-of-attorney executed in his favour on the 2nd March 1894, it has not been denied by his learned vakil that he was liable to render an account; but he took up the position that accounts had been rendered and had been accepted by the Plaintiff. In our opinion this contention is amply sustained by the evidence on the record. It appears that after the execution proceedings had been taken out and after the Plaintiff had discovered that they were more or less in fructuous and were sure to involve him in loss, he became anxious to obtain an account from the Defendant. On the 28th October 1895 the Defendant offered to render an account to the Plaintiff and shortly after repeated the offer. In December 1899, the Plaintiff proposed arbitration and in May of the following year he named two persons Khetra and Sham who, he suggested, might be empowered to settle the accounts. After prolonged correspondence, the whole of which has not been produced but the substance of which may fairly be gathered from the portion on the record, in July 1900 the parties agreed that Shama Charan Laha was to be Invited to look through the accounts. The oral evidence proves conclusively that about September and October 1900 the Plaintiff, with the assistance of Shama Charan, examined the whole of the accounts which in his opinion showed that he had received Rs. 700 in excess of what he was entitled to get. He appears to have given out this fact and when the Plaintiff heard of it, he at once enquired of Shama Charan whether according to him the Plaintiff had overdrawn to the extent of Rs. 700 only. Shama Charan replied on the 10th November 1900 and expressed his surprise and astonishment that the Plaintiff should have given out that Shama Charan had found out on adjustment of accounts that Plaintiff bad overdrawn to the extent of Rs. 700 only. He further stated that the Plaintiff had himself gone through the account books and had found the accounts furnished to him correct except as to a few terms which be desired to submit for the consideration of the Defendant. 700 only. He further stated that the Plaintiff had himself gone through the account books and had found the accounts furnished to him correct except as to a few terms which be desired to submit for the consideration of the Defendant. The Defendant thereupon wrote to the Plaintiff and asked him to explain how he had found out from the accounts that he had overdrawn to the extent of Rs. 700 only. On the 15th November 1900, the Plaintiff replied and gave an abstract of the accounts stating that the accounts as audited by Shama Charan showed that the Plaintiff had received In excess Rs. 700. The Defendant does not appear to have accepted the view of the Plaintiff that the latter had overdrawn to the extent of Rs. 700 only, and his position throughout has been that the Plaintiff had overdrawn to a much larger extent. The Plaintiff, however, was apparently satisfied with the examination of the accounts and was content to accept the position that he had overdrawn to the extent of Rs. 700 only. There was further correspondence between the parties in 1901 but there is no tangible suggestion in any of the letters that the Plaintiff wanted to resile from the position he had taken up on the 15th November 1900; and it was not till the Plaintiff gave the Defendant notice of this suit, that he indicated in any way that he was not prepared to accept the accounts which had been submitted to him in October 1900 and had been minutely examined by him for many days with the assistance of the clerk of the Defendant. Under these circumstances, it is contended by the Defendant that there has been a settled account between the parties and that the Plaintiff is not entitled to maintain this action. In our opinion, this contention is well-founded. It is well-settled that the requisities for making an account settled, depend on the circumstances of each case and the mode of dealing between the parties. But although acquiescence in accounts furnished may not, by itself, amount to settlement [Clancarty v. Latonche 1 Ball & Beatty. In our opinion, this contention is well-founded. It is well-settled that the requisities for making an account settled, depend on the circumstances of each case and the mode of dealing between the parties. But although acquiescence in accounts furnished may not, by itself, amount to settlement [Clancarty v. Latonche 1 Ball & Beatty. 420 at p. 428], where accounts have been delivered with opportunity for inspection, where they have been duly examined and no exception has been taken, and when they have been acquiesced In, they cannot be opened unless upon distinct and specific averment of errors properly proved [Parkinson v. Hanbury L. R. 2 H. L. 1 (1867)]. The principle applicable to cases of this description was laid down by their Lordships of the Judicial Committee in McKellnar v. Wallace 5 Moo. I. A. 372; 8 Moo. P. C. 878 (1853). "Parties having accounts between them may meet and agree to settle those accounts by the ascertainment of the exact balance; and if they mean to ascertain the exact balance, it may be necessary for that purpose and probably is necessary in most cases, that vouchers should be produced and that all the information which is possessed on one Bide and the other should be furnished in the settlement of those accounts; and If it afterwards turn out that there are errors in the account, It is a sufficient ground for opening the account and for Betting it right in a Court of Equity. If, on the other hand, persons meet and agree not to ascertain the exact balance but agree to take a gross sum as the balance, a sum, which one is willing to pay, and the other is content to receive as the result of those accounts, It is obvious that the production of vouchers is entirely out of the question and errors in the account are so also; for the very object of the parties is to avoid the necessity for producing those vouchers upon the assumption that there are or may be errors in the accounts so settled. Therefore it is either an account stated and settled in the formal sense of that expression, or it is case of settlement by compromise. Therefore it is either an account stated and settled in the formal sense of that expression, or it is case of settlement by compromise. In either case It may be vitiated by fraud; In either case it is good for nothing if, either from the collusion of the parties, upon the circumstances under which the settlement takes place, it is proved in a Court of Equity that the transaction was not so fairly and so fully understood between the parties either from the confusion In which it was involved or from the misrepresentations made on the one side or the other, as it ought to have been, and that injustice has been done to either side." It is not very material for our present purpose to examine whether in this case the settlement of account was of the first or the second kind; because it is quite clear that it cannot be reopened except on the ground of errors or on the ground of fraud, mistake or collusion none of which was alleged by the Plaintiff in the Court below. He has on the other hand acquiesced in the accounts ever since November 1900. It is shown that the accounts which were delivered to him at that time were thoroughly examined and that every opportunity was given to him for investigation. Under these circumstances, it is impossible for him to proceed on the assumption that no accounts have ever been rendered. It was suggested however In reply by the learned vakil for the Appellant that an examination of the accounts on the record shown that there are errors. We are unable to hold that the Plaintiff is entitled to take up this position at the present stage of the case. It cannot be disputed that if a settled account is impeached for errors, particular errors must be stated and proved and that the same rule holds even when the account is settled "errors excepted." [Parkinson v. Hanbury L. R. 2 H. L. 1 (1887), Kinsman v. Barker 14 Ves. 679 (1808)]. It cannot be disputed that if a settled account is impeached for errors, particular errors must be stated and proved and that the same rule holds even when the account is settled "errors excepted." [Parkinson v. Hanbury L. R. 2 H. L. 1 (1887), Kinsman v. Barker 14 Ves. 679 (1808)]. As observed by Lord Chelmsford in the former of these oases, "where a party seeks to open a settled account, there must be some direct, distinct and specific averment of errors to entitle the party to open the account." Having regard to the circumstances of the present case, it was specially necessary for the Plaintiff to state in his plaint the particular items of the account which he challenged. The accounts have been spread over so many years and they were so thoroughly examined by the Plaintiff that even If any errors were Bhown the Court would not be Inclined to re-open the accounts in their entirety; the utmost which the Court might have done would have been, not to give leave to surcharge and falsify generally but only to rectify particular Items. [Two Good v. Swanston 6 Ves. 485 (1801), Maund v. Alliss 5 Jur. 860: 62 R. R. 866 (1849)] The Plaintiff, however, has done nothing of the kind here. He commenced the action on the assumption that no accounts had been rendered: in fact, he ignored the settled accounts. The case proceeded in the Court of first instance upon the question of the liability of the Defendant to render an account and the appeal has been argued before us precisely on the same footing. The learned vakil for the Appellant in his reply suggested for the first time that the case might be tried upon the assumption that there was settled account between the parties which ought to be re-opened on the ground of errors. To allow the Plaintiff to change his case at this stage of the proceedings would be obviously unfair to the Defendant. If the Plaintiff had taken up in the Court below the position which be now seeks to adopt, the Defendant would have obtained an opportunity to explain the accounts and we are by no means satisfied that if such case had been set up on behalf of the Plaintiff, the Defendant might not have satisfactorily explained what are now alleged to be errors in the accounts. In our opinion the Plaintiff is not entitled to convert the suit into one for re-opening the accounts on the ground of errors contained therein. We must consequently hold that the accounts which were rendered to the Plaintiff in November 1900, which were examined by him in detail, which according to him showed that he had overdrawn to the extent of Rs. 700 and which have been subsequently acquiesced in by him, furnish a complete answer to the claim for accounts put forward in the present litigation. 8. We desire to point out that the mode in which this litigation has been conducted has led to a great deal of waste of time. Where a person seeks an account from another alleged by him to be his agent the first question to be decided is the factum of the agency. If that question is decided in favour of the Plaintiff, the next question to be tried Is whether the Defendant as agent is liable to be to call upon to account. If be answers that accounts have been settled between him and his principal that question ought to be tried next. If the accounts have not been settled, they have then to be taken. In suits of this description if liability to account, is denied, that is the fundamental question to be tried first. It is only after an adverse decision upon this question against the Defendant that he may be called upon to render an account. If this procedure had been followed at laid down by their Lordships of the Judicial Committee In Harri Nath Rai v. Krishna Kumar Bakshi ILR 14 Call 147 (1886) a great many irrelevant questions put to the witnesses in examination-in-chief and in cross examination might have been avoided. In the view we take of the matter the claim of the Plaintiff is entirely unfounded and has been rightly dismissed by the Subordinate Judge. The appeal consequently fails and is dismissed with costs.