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Page:Harvard Law Review Volume 2.djvu/276

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The next question is, What is the jurisdiction of equity over obligations to account? The action of account seems to have proved a failure before any regular system of equity was estab- lished. Certainly equity never regarded that action as an ade- quate remedy, and therefore it always permitted an obligation to account to be enforced by bill. At first, therefore, and for a long time, courts of equity had (what is improperly called) a concur- rent jurisdiction with courts of law over obligations to account. Actions of account were for a time revived to some extent in England during the present century, but, with that exception, they have been constantly on the decline ; and now, so far as the writer is aware, they are everywhere either abrogated or wholly obsolete. Obligations to account now therefore furnish an instance of an important legal right with no legal remedy what- ever, and hence the sole remedy is in equity. A bill in equity for an account, therefore, is simply a substitute for the action of account.

The proceedings upon a bill for an account are similar, in their main outline, to those in an action of account. Of course there are all those differences which distinguish all proceedings in a suit in equity from those in an action at law, but such diflferences do not require to be noticed here. The question whether the defend- ant is bound to account is, of course, heard by a judge, instead of being tried by a jury. If, however, this question should be found to turn upon controverted facts, it would seem to be the right of either party to have it sent to a court of law to be tried by a jury.^ If it be decided that the defendant shall account, the court makes a decree, referring the cause to a master to take the account, instead of appointing auditors as at law.

If, upon the accounting, the defendant be found to be in sur- plusage to the plaintiff, he is entitled to a decree against the plaintiff for the balance due to him. This is upon the same principle upon which the defendant may have a decree in his favor upon a bill for specific performance, and which has been already explained.^ It would seem to follow, therefore, that a

has a right to retain out of the very sum demanded. This is not in the nature of a cruas- demand or mutual debt : it is a charge, which makes the sum of money received for the plaintiff's use so much less." There is but one criticism to be made upon this very char- acteristic language, namely, that the action was indebitatus assumpsit^ — ■ not account.

1 Note to Holstcomb v. Rivers, i Eq. Cases Abr. 5.

« See Vol I. pp. 361, 362.