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Page:Harvard Law Review Volume 2.djvu/277

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person subject to an obligation to account, and who claims to be in surplusage to the obligee, may himself file a bill against the obligee to have his accounts taken, and to have a decree for the payment of such balance as shall be found to be due to him ;^ for other- wise he would seem to be without remedy, in case the obligee do not choose to file a bill.

A defendant to a bill for an account, as well as a defendant in an action of account, may account fully by showing that all the property for which he was accountable has been sold, and its proceeds received ; that, upon receiving such proceeds, he was entitled to appropriate them to his own use, debiting himself and crediting the plaintiff with their amount, and that he did so ; but the consequences of such an accounting upon a bill for an account are different from what they are in an action of account ; for, while in the latter, as we have seen, the plaintiff can obtain noth- ing but the accounting, and must bring a separate action of debt or indebitatus assumpsit to recover the debt, upon the former, the accounting will be followed up by a decree for the payment of the debt ; and this is done for the purpose of avoiding a multiplicity of actions, equity never sending a plaintiff to a court of law to finish what equity has begun.

It remains to inquire against what classes of persons a bill for an account will lie. The two most ancient as well as most typical classes are guardians (including committees of lunatics and other persons of unsound mind), and agents, stewards, or bailiffs of landed estates.^ Bills against the first of these two classes are much less common in this country than in England, as such per- sons in this country more frequently settle their accounts in probate courts or in other inferior and local courts. Bills against the second class of persons are also much less numerous in this country than in England, because such persons are themselves

1 There is» however, a singular dearth of aathority upon the proposition stated in the text In Dinwiddie v. Bailey, 6 Ves. 136, the plaintiffs counsel said (p. 139) : "There have been many bills of this nature [/. e,, bills for an account] by stewards for an account between them and their employers, as to receiving rents and paying sums of money. The defendants must make out that the court will not entertain a bill for an account at the suit of an accounting party." Though the decision was against the phiintiff, and though no authority was cited in support of the statement that there had been many bills for an account by stewards, yet the accuracy of that statement was not questioned either by Lord Eldon or by the defendant's counsel.

3 Makepeace v, Rogers, 4 De G., J. & S. 649.