Open main menu

Page:Harvard Law Review Volume 2.djvu/284

This page needs to be proofread.

266 ^^^ VARD LA W RE VIE W.

paid for his services by a commission on the sales made through him ; ^ but if, by the agreement, he were entitled specifically to a share of the proceeds of such sales, he could maintain a bill for an account.^

A trustee is obviously under an obligation to account with his cestui que trust for the trust property or its income ; but this obli- gation is merely equitable, and therefore a bill by a cestui que trust against his trustee is never a bill for an account in point of juris- diction.

An executor or administrator is under a legal duty to pay or deliver over the personal property of his testator or intestate, after payment of debts, to the legatees or next of kin, and the latter may maintain a bill to compel a performance of this duty ; but such a bill is not a bill for an account. The reasons why it is not are several, but there is one which is alone sufficient in this connec- tion, namely, that the jurisdiction over such bills was derived by equity from the canon or ecclesiastical law. If, however, a testator by his will give to A the proceeds of certain land which he directs his executor to sell, and the executor sell the same accordingly, and receive the proceeds, though there is no doubt that A can maintain a bill against the executor to recover such proceeds, it is not so clear what will be the true nature of such a bill in point of jurisdiction. The question depends upon whether the case would formerly have belonged to the common-law courts (in which case the remedy would have been an action of account), or to the ecclesiastical courts, the gift being regarded as a legacy. It seems to be pretty well settled that the former is the correct view.^

An attorney-at-law who collects money for a client is bound to pay it over to his client at the earliest opportunity ; and in the mean time he must not mix it with his own money. A bill for an account will therefore lie against him. So, it seems, a sheriff is accountable to the judgment creditor for the proceeds of prop- erty levied upon and sold by the former under an execution.* In the case of a sheriff, however, as well as in that of an attorney, there is a summary remedy in the court out of which the execu-

1 Smith V, Lcveaux, 2 De G„ J. & S. i. ^ See supra^ p. 262, and n. 2.

  • Paschall v. Keterich, Dyer, 151 b; Barker v. May, 9 B. & Cr. 489. But see Anon.« 

Dyer, 264 b; Dens v. Dens, i Bulstr. 153.

  • Speake v. Richards^ Hobart, 206; i Vin. Abr., Account (D), pL 9.