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Page:Harvard Law Review Volume 2.djvu/260

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242

HAR VARD LA W RB VIE W.

since the performance which equity enforces, in cases of contracts and other obligations, is no more specific than it is in other cases. The answer to this question seems to be that the term "specific performance " is used, not to indicate the nature of the relief given by equity, but to indicate the reason and the object of the juris- diction assumed by equity, — the reason being that a compensa- tion in money is an inadequate remedy, and the object therefore being to afford a remedy by way of specific performance or specific reparation. In other words, the term " specific perform- ance " is used, not to indicate that the relief given by equity in such cases differs from the relief which equity gives in other cases, but to mark the distinction between the relief given by equity and the relief given at law in such cases. Accordingly, when (as is often the case) equity assumes jurisdiction over con- tracts and other obligations, not because a compensation in money is an inadequate remedy for a breach, but for some other reason, — when in fact the relief given is the same in equity as at law, namely, a compensation in money, — the jurisdiction is never designated by the term "specific performance."

The preceding article comprised all that it was proposed to say upon the subject of specific performance ; but it remains to speak of three important classes of cases in which equity assumes juris- diction over contracts or other obligations, and yet gives no other relief than a compensation in money ; namely, first, bills for an account ; secondly, bills in the nature of an action of assumpsit, or bills of equitable assumpsit ; thirdly, creditors' bills, i.e,^ bills filed by creditors of persons deceased against the executors or adminis- trators of the debtors to compel the payment of the debts.

Bills for an Account.

Every bill for an account must be founded upon an obli- gation to render an account. What then is the nature of such an obligation, and when does it exist \ In strictness this question does not belong to the subject . of these articles ; but the obligation to render an account is so little understood, that a knowledge of it cannot properly be assumed. It was formerly well enough understood by common-law lawyers, but, with the disuse of the action of account, nearly all knowledge of it has been lost by them. It might be supposed that what com- mon-law lawyers ceased to know in this regard, equity lawyers