delivered the opinion of the court.

This seems to be an unfortunate case. But on looking through the record, one cannot help coming to the conclusion that the complainant has paid enough for an account in this matter, in order to be entitled to one of some sort.

The obstinacy with which the complainant’s counsel insisted on their mode of amending their bill, finds some extenuation in the manner in which they had been treated in relation to the taking of an account. When this cause was formerly here, there was no bill of exceptions, and the court was narrowed to the record proper for a reason to reverse the decree, and it was remanded with the hope that it would have been tried on its merits. But this has not been done, and the cause is here a second time in much the same condition in which it formerly was. As this case is somewhat anomalous from the manner in which it has been conducted, we do not hesitate to reverse the decree dismissing the bill, in order that there may be an opportunity for a trial on its merits. Under the circumstances, we are of opinion that this is a proper case for the exercise of the discretion in permitting a complainant to amend his bill. The decree will be reversed and the cause remanded, with directions to refer back the account stated to a commissioner, with instructions to examine the same as to errors and omissions, and with leave to the complainant to surcharge and falsify the same on the basis of the settlement as found by the court. The other judges concur.