CHAPTER VIII.

ACCOUNT.

§ 441. HAVING disposed of these three great heads of concurrent equitable jurisdiction in matters of accident, mistake, and fraud, the undisputed possession of which has belonged to Courts of Equity from the earliest period which can be traced out in our juridical annals, we may now pass to others of a different and less extensive character. We allude to the heads where the jurisdiction, although it may attach upon any or all of the grounds above-mentioned, is not necessarily dependent upon them, and in fact, is exercised in a variety of cases, where they do not apply, upon another distinct ground, viz. that the subject-matter is, per se, within the scope of equitable jurisdiction. Among these are Matters of Account, and, as incident thereto, Matters of Apportionment, Contribution, and Average; Liens, Rents, and Profits; Tithes, and Moduses, and Waste; Matters of Administration, Legacies, and marshalling of Assets; Confusion of Boundaries; Matters of Dower; Marshalling of Securities; Matters of Partition; Matters of Partnership; and lastly, Matters of Rent, so far as they are not embraced in the preceding head of Account.

§ 442. Let us begin with matters of ACCOUNT. One of the most ancient forms of action at the Common Law is the action of account. But the modes of proceeding in that action, though aided from time to time by statutable provisions, were found so very dilatory, inconvenient, and unsatisfactory, that, as soon as Courts of Equity began to assume jurisdiction in matters of account, as they did at a very early period, the remedy at law began to decline; and though some efforts have been made in modern times to resuscitate

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it, it has in England fallen into almost total disuse.' of Equity have for a long time exercised a general jurisdiction in all cases of mutual accounts, upon the ground of the inadequacy of the remedy at law; and have extended the remedy to a vast variety of cases, (such as to implied and constructive trusts,) to which the remedy at law never was applied. So that now the jurisdiction extends not only to cases of an equitable nature, but to many cases, where the form of the account is purely legal, and the items, constituting the account, are founded on obligations purely legal. On such legal obligations, however, suits though not in the form of actions of account, yet in the form of assumpsit, covenant, and debt, are still daily prosecuted in the Courts of Common Law,3 and legal defences are there brought forward. But even in these cases, as the Courts possess no authority to stop the ordinary progress of such suits, for the purpose of subjecting the matters in dispute to the investigation of a more convenient tribunal than a jury, unless the parties agree to a voluntary arrangement for this purpose, the cause often proceeds to trial in a manner wholly unsuitable to its real merits.*

1 In Godfrey v. Saunders, (3 Wilson R. 73, 113, 117,) which is one of the few modern actions of account in England, Lord Chief Justice Wilmot said (p. 117): "I am glad to see this action of account is revived in this Court." Mr. Guillim, in his edition of Bac. Abridg. title Accompt, p. 31, note (a), seemed to think that the action of account did not deserve the character usually given of it. But the Parliamentary Commissioners, in their second Report on the Common Law, (8 March, 1830, p. 9, 25, 26,) have no scruple to admit its inconvenience and dilatoriness, and that it has gone into disuse. See also Buller, N. P. 217; 2 Reeves, Hist. of the Law, 73, 178, 337; 3 Reeves, Hist. L. 388; 4 Reeves, Hist. L. 378; Adresillab v. McCall, 5 Binn. 433; 3 Black. Comm. 164.

2 See Corporation of Carlisle v. Wilson, 13 Ves. 275; 1 Fonbl. Eq. B. 1, ch. 1, § 3, note (ƒ), p. 13, 14; Bac. Abridg. Accompt B.

It was at one time doubted whether an action of Assumpsit would lie for the balance of an account, where there are items on both sides. But it is now fully established, that however numerous the items may be, still, if there appears anything due on one side, an action of Assumpsit will lie for the balance. Tomkins v. Wilshear, 5 Taunt. R. 431; S. C. 1 Marsh. R. 115, and the cases there cited; 2 Saund. 127, Williams's note (d). The use of the old action of Account is there said to be, where the plaintiff wants an account, and cannot give evidence of his right without it. Ibid.

42 Parl. Common Law Rep. 1830, p. 25, 26; Wilkin v. Wilkin, Salk. 9; 3

§ 443. The difficulties in the modes of proceeding in actions of account, and the convenience of the modes of proceeding in suits in Equity, to attain the ends of substantial justice, are stated in an elementary work of solid reputation, with great clearness and force. The language of the learned author is as follows: "The proceedings in this action being difficult, dilatory, and expensive, it is now seldom used, especially if the party have other remedy, as debt, covenant, case; or if the demand be of consequence, and the matter of an intricate nature; for in such case, it is more advisable to resort to a Court of Equity, where matters of accompt are more commodiously adjusted, and determined more advantageously for both parties; the plaintiff being entitled to a discovery of books, papers, and the defendant's oath; and, on the other hand, the defendant being allowed to discount the sums paid or expended by him; to discharge himself of sums under forty shillings by his own oath; and if by answer or other writing, he charges himself, by the same to discharge himself, which will be good, if there be no other evidence. Farther, all reasonable allowances are made to him; and if, after the accompt is stated, anything be due to him upon the balance, he is entitled to a decree in his favour.""

§ 445. To expound and justify the truth of these remarks, it may be well to take a short review of the old action of account; and to see to what narrow boundaries it was confined, and by what embarrassments it was surrounded.

446. At the Common Law an action of account lay only in cases where there was either a privity in deed by the consent of the party, as against a bailiff or receiver appointed by the party, or a privity in law, ex provisione legis, as Black. Comm. 184.-The Parliamentary Commissioners, in their second Report on the Common Law, (8 March, 1830, p. 26,) proposed to invest the Courts of Common Law with power to refer such accounts to Auditors in such cases; a suggestion, which has since been adopted; as, indeed, it had been adopted before in some of the American States. See Duncan v. Logan, 3 John. Ch. R. 361; Act of Massachusetts, 20th Feb. 1818, ch. 142.

1 Bac. Abridg. Accompt. See also I Eq. Abridg. p. 5, note (a); Anon. 1 Vern. 283; Wicherly v. Wicherly, 1 Vern. 470; Marshfield v. Western, 2 Vern. 176.

against a guardian in socage.1 An exception, indeed, or rather an extension of the rule, was, for the benefit of trade and the advancement of commerce, allowed in favour of and between merchants; and, therefore, by the law merchant, one naming himself merchant, might have an account against another, naming him merchant, and charge him as receiver.2 But in truth, in almost every supposable case of this sort, there was an established privity of contract. With this exception, however, (if such it be,) the action was strictly confined to bailiffs, receivers, and guardians in socage.3 So strictly was this privity of contract construed, that the action did not lie by or against executors and administrators. The Statute of 13th of Edw. III. ch. 23, gave it to the executors of a merchant; the Statute of 25th of Edw. III. ch. 5, gave it to the executors of executors; and the Statute of 31st of Edw. III. ch. 11, to administrators.* But it was not until the Statute of 3d and 4th of Anne, ch. 16, that it lay against executors and administrators of guardians, bailiffs, and receivers.5

§ 447. But in all cases of this latter sort, although there was no remedy at the Common Law, yet a bill in Equity might be maintained for an account against the personal representatives of guardians, bailiffs, and receivers; and such was the usual remedy, prior to the remedial Statute of Anne." And no action of account lay at the Common Law against wrong-doers; nor by one joint-tenant, or tenant in common, or his executors or administrators, against the other, as bailiff, for receiving more than his share, or against his

1 Co. Litt. 90 b; Id. 172 a; 2 Fonbl. Eq. B. 2, ch. 7, § 6, and note; Bac. Abridg. Accompt A.; Com. Dig. Accompt A. 1; 2 Inst. 379.

2 Co. Litt. 172 a; Earl of Devonshire's case, 11 Co. R. 89.

3 Buller's N. P. 127; 1 Eq. Abridg. 5, note (a); 2 Fonbl. B. 2, ch. 7, § 6, and note (n); Co. Litt. 172 a; 2 Inst. 379; Sargent v. Parsons, 12 Mass. R. 149. 4 Co. Litt. 90 b; 2 Fonbl. Eq. B. 2, ch. 7, § 6, and note (n).

5 Ibid.; Bull. N. P. 127; Earl of Devonshire's case, 11 Co. R. 89.

62 Fonbl. Eq. B. 2, ch. 7, § 6, note (n); 1 Eq. Abridg. 5, note (a).

7 Bac. Abridg. Accompt B. We shall presently see that Courts of Equity frequently administer relief in cases of account against wrong-doers. See Bac. Abridg. Accompt B.; Bosanquet v. Dashwood, Cas. T. Tall. 38, 41.

executors or administrators, unless there was some special contract between them, whereby the one made the other his bailiff; for the relation itself was held not to create any privity of contract by operation of law. This defect was afterwards cured by the Statute of 3d and 4th of Anne, ch. 16.2 The Common Law was strict, as to who was to be accounted a bailiff or receiver; for a bailiff was understood to be one who had the administration and charge of lands, goods, and chattels, to make the best benefit for the owner; and against whom, therefore, an action of account would lie for the profits which he had made, or might, by his industry or care, have reasonably made; his reasonable charges and expenses being deducted.3 A receiver was one who received money to the use of another to render an account; but upon his account, he was not allowed his expenses and charges, except in the case of merchant-receivers. And this was provided (as it was said) by the law of the land in favour of merchants, and for the advancement of trade and traffic. that it will be at once perceived from these cases, (and many others might be mentioned,)5 that the remedy at the Common Law was very narrow; and, though it was afterwards enlarged, that would not of itself displace the jurisdiction originally vested in equity.

So

§ 446. In the next place, as to the modes of proceeding in actions of account. At the Common Law, before either the Statute of Marlebridge, ch. 23, or of Westminster 2d, ch. 11, there were two methods of proceedings against an accountant; one by which the party to whom he was accountable, might, by consent of the accountant, either take the account himself, or assign an auditor or auditors to take it;

1 Co. Litt. 172, and Harg. note (8); Co. Litt. 186 a, 119 b, and Harg. note (83); Wheeler v. Horne, Willes, R. 208; 2 Fonbl. Eq. B. 2, ch. 7, § 6, note (n); Bac. Abridg. Accompt A.; 1 Saund. R. 216, Williams's note.

2 Ibid.; 3 Black. Comm. 164.

3 Co. Litt. 172 a; 2 Fonbl. Eq. B. 2, ch. 7, § 6, and note (n).

4 Co. Litt. 172 a.

5 See Bac. Abridg. Accompt B. C.; Com. Dig. Accompt A. B. D. ; 3 Reeves, Hist. L. 337, 338, 339; 3 Reeves, Hist. L. 75; 4 Reeves, Hist. L. 388.