454. One of the most difficult questions arising under this head (and which has been incidentally discussed in another place) is to ascertain whether there are any, and if any, what are the true boundaries of equity jurisdiction in such matters of account as are cognizable at law. We say cognizable at law; for wherever the account stands upon equitable claims, or has equitable trusts attached to it, there is no doubt that the jurisdiction is absolutely universal and without exception, since the party is remediless at law.2

455. But in cases where there is a remedy at law there is no small confusion and difficulty in the authorities. The jurisdiction in matters of this sort has been asserted to be maintainable upon two grounds, distinct in their own nature and yet often running into each other.3 In the first place it has been asserted that where in a matter of account the party seeks a discovery of facts and these appear upon his bill to be material to his right of recovery, there, if the answer does in fact make a discovery of such material facts (for it would be no ground of jurisdiction if the discovery failed), the court having once a rightful jurisdiction of the cause ought to proceed to give relief in order to avoid

1 Ante, § 67.

2 Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. 5, pp. 504, 505, 506.

See ante, §§ 64 to 69, and note to § 69; Corporation of Carlisle v. Wilson, 13 Ves. 278, 279. Lord Chancellor Erskine, in Corporation of Carlisle v. Wilson, 13 Ves. 278, 279, maintained the concurrent jurisdiction of Courts of Equity in matters of account to a very broad extent. He said: "The principle upon which Courts of Equity originally entertained suits for an account, where the party had a legal title, is, that though he might support a suit at law, a Court of Law either cannot give a remedy or cannot give so complete a remedy as a Court of Equity; and by degrees Courts of Equity assumed a concurrent jurisdiction in cases of account; for it cannot be maintained that this court interferes only when no remedy can be had at law. The contrary is notorious.' 'The proposition asserted against this bill is, that this court ought to refuse to interfere by directing an account, if an action for money had and received, or an indebitatus assumpsit, can be maintained. That proposition cannot be maintained,' &c. 'The proposition is not that an account may be decreed in every case where an action for money had and received, or indebitatus assumpsit, may be brought (and certainly indebitatus assumpsit lies for tolls); but that, where the subject cannot be so well investigated in those actions, this court exercises a sound discretion in decreeing an account.' See what was said by Mr. Vice-Chancellor Wigram in Pearce v. Cresswick, 2 Hare, R. 286, 293, cited ante, § 64 k, note.

4 Ante, §§ 71, 74; Russell v. Clarke's Ex'rs, 7 Cranch, 69; Dinwiddie v. Bailey, 6 Ves. 140, 141.

multiplicity of suits. And this plain ground is asserted by the learned author of the Treatise of Equity in a passage already cited; and it has been often maintained in the English Courts of Equity. But (as we have already seen) there are other authorities in the English courts which conflict with this doctrine, and which, without attempting to lay down any rule for a practical discrimination as to cases within and cases without the jurisdiction, seem to deliver over the subject to interminable doubts. *

456. The doctrine now generally (perhaps not universally) held in America is (as we have seen),5 that in all cases where a Court of Equity has jurisdiction for discovery, and the discovery is effectual, that becomes a sufficient foundation upon which the court may proceed to grant full relief. In other words where the court has legitimately acquired jurisdiction over the cause for the purpose of discovery it will, to prevent multiplicity of suits, entertain the suit also for relief." (a)

1 Ryle v. Haggie, 1 Jac. & Walk. 237.

21 Fonbl. Eq. B. 1, ch. 1, § 3, note (ƒ); ante, §§ 64, 66; 2 Fonbl. Eq. B. 6, ch. 3, § 6; Lee v. Alston, 1 Bro. Ch. R. 195, 196; Barker v. Dacie, 6 Ves. 688; Corporation of Carlisle v. Wilson, 13 Ves. 278, 279.

8 Ante, §§ 64 k, 65, 66; 1 Fonbl. Eq. B. 1, ch. 3, note (ƒ); note (r); Parker v. Dee, 2 Ch. Cas. 200, 201; 1 Eq. Abridg. A., p. 5; 2 Eq. Abridg. A., p. 4; Ryle v. Haggie, 1 Jac. & Walk. 237.

4 See ante, §§ 64 to 69, and note to § 69. Many of the cases on this head have been already commented on at large in note 1 to § 69. The difficulty of reconciling the authorities is very great. Is there any distinction between cases of account founded in privity, and those founded in tort (such as a waste, &c.)?

5 Ante, §§ 67, 71, 74; Middletown Bank v. Russ, 3 Connect. R. 135.

• See ante, §§ 64 to 69, 71; Armstrong v. Gilchrist, 2 John. Cas. 424; Rathbone v. Warren, 10 John. R. 587; King v. Baldwin, 17 John. R. 384; Ludlow v. Simond, 2 Cain. Cas. Err. 1, 38, 39, 51, 52; Stanley v. Cramer, 4 Cowen, R. 727, 728. In Fowle v. Lawrason, 5 Peters, Sup. Ct. R. 495, Mr. Chief Justice Marshall, in delivering the opinion of the court, said: That a Court of Chancery has jurisdiction in matters of account cannot be questioned, nor can it be doubted that this jurisdiction is often beneficially exercised; but it cannot be admitted that a Court of Equity may take cognizance of every action, for goods, wares, and merchandise sold and delivered, or of money advanced, where partial payments have been made, or of every contract, express or implied, consisting of various items, on which different sums of money have become due and different payments have been made. Although the line may not be drawn with absolute precision, yet it may be safely affirmed that a Court of Chancery cannot draw to itself every transaction between individuals in which an account between parties is to be adjusted. In all cases in

(a) See Russell v. Madden, 95 Ill. 485; ante, pp. 78-81, note.

457. Another and more general ground has been asserted for the jurisdiction; and that is, not that there is not a remedy at law, but that the remedy is more complete and adequate in equity, and besides that it prevents a multiplicity of suits. This is indeed a very broad and general ground of jurisdiction; and especially as applied to cases founded in privity of contract, where it is contemplated that the matter should give rise to an account.1 (a) Upon this ground Lord Hardwicke expressed himself in favor of the jurisdiction generally in a case then before him, saying, 'It is a matter of contract and account and consequently a proper subject for the jurisdiction of this court.' And this is manifestly the doctrine maintained by Lord Redesdale, who said that in matters of account, A Court of Equity will entertain jurisdiction of a suit, though a remedy might perhaps be had in the Courts of Common Law. The ground upon which Courts of Equity first interfered in these cases seems to have been the difficulty of proceeding to the full extent of justice in the Courts of Common Law.' And in a note it is added, 'Perhaps in some of these cases the jurisdiction was first assumed to prevent multiplicity of suits.'3 (b) He subsequently said: 'The

6

which an action of account would be the proper remedy at law, and in all cases where a trustee is a party, the jurisdiction of a Court of Equity is undoubted. It is the appropriate tribunal. But in transactions not of this peculiar character, great complexity ought to exist in the accounts, or some difficulty at law should interpose, some discovery should be required, in order to induce a Court of Chancery to exercise jurisdiction. 1 Madd. Chan. 86; 6 Ves. 136; 9 Ves. 437. In the case at bar these difficulties do not occur. The plaintiff sues on a contract by which real property is leased to the defendant, and admits himself to be in full possession of all the testimony he requires to support his action. The defendant opposes to this claim, as an offset, a sum of money due to him for goods sold and delivered, and for money advanced, no item of which is alleged to be contested. We cannot think such a case proper for a Court of Chancery.'

1 Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. 5; Barker v. Dacie, 6 Ves. 688; 3 Black. Comm. 437.

2 Billon v. Hyde, 1 Atk. 127, 128.

Mitford on Eq. Pl. by Jeremy, 119, 120; Barker v. Dacie, 6 Ves. 688; Mackenzie v. Johnston, 4 Madd. R. 374.

(a) See Shepard v. Brown, 4 Giff. 208; Smith v. Laveaux, 2 DeG. J. & S. 1; Flockton v. Peake, 12 Week. R. 562; Dabbs v. Nugent, 11 Jur. N. s. 943; Birmingham Gas Co. v. Ratcliffe,

L. R. 6 Ex. 224; Badger v. McNamara, 123 Mass. 117.

(b) See White v. Hampton, 10 Iowa, 238; Wilson v. Riddle, 48 Ga. 609; Biddle v. Ranney, 52 Mo. 153.

Courts of Equity having gone the length of assuming jurisdiction in a variety of complicated cases of account, &c., seem by degrees to have been considered as having on these subjects a concurrent jurisdiction with the Courts of Common Law in cases where no difficulty could have attended the proceedings in those courts.'1 In cases of mutual (a) accounts founded in privity of contract this doctrine is, in the English courts, acted upon in the most ample manner in our day without any limitation,2 as it certainly is fully maintained in America. (b)

458. Courts of Equity will also entertain jurisdiction in matters of account not only when there are mutual accounts, but also when the accounts to be examined are on one side only, and a discovery is wanted in aid of the account and is obtained.* (c)

1 Mitf. Eq. Pl. by Jeremy, 123. See also O'Conner v. Spaight, 1 Soh. & Lefr. 309; Barker v. Dacie, 6 Ves. 688; Corporation of Carlisle v. Wilson, 13 Ves. 276; Coop. Eq. Pl. Introd. 31; Duke of Leeds v. Radnor, 2 Bro. Ch. R. 338, 518.

2 Dinwiddie v. Bailey, 6 Ves. 140, 141; 2 Parl. Rep. of Common Law Commissioners, 1830, p. 26; Courtenay v. Godshall, 9 Ves. 473.

8 Armstrong v. Gilchrist, 2 John. Cas. 424; Rathbone v. Warren, 10 John. R. 587; King v. Baldwin, 17 John. R. 384; Ludlow v. Simond, 2 Cain. Cas. Err. 1, 38, 39, 51, 52; Post v. Kimberly, 9 John. R. 493; Hawley v. Cramer, 4 Cowen, R. 727, 728; 2 Parl. Report of the Common Law Commissioners, 1830, p. 26; Porter v. Spencer, 2 John. Ch. R. 171.

4 Barker v. Dacie, 6 Ves. 687, 688; Frietas v. Don Santos, 1 Y. & Jerv. 574; Courtenay v. Godshall, 9 Ves. 473; Mackenzie v. Johnston, 4 Madd. R. 374; Massey v. Banner, 4 Madd. R. 416, 417; Ludlow v. Simond, 2 Cain. Cas. Err. 1, 38, 52; Post v. Kimberly, 9 John. R. 470, 493. The Vice-Chancellor (Sir John Leach) has held generally that in all cases of agency a bill will lie in equity for an account by the principal against his agent. Mackenzie v. Johnston, 4 Madd. R. 374; Massey v. Banner, 4 Madd. R. 416. The ground seems to be, though not explicitly stated by him, that there being a necessity for a discovery, the relief is consequent on that; and that it would be most unreasonable that he should pay his agent for a discovery, and then be turned round to a suit at law, which would be the case if he could not have relief on his bill. The case of Hoare v. Contencin (1 Bro. Ch. R. 27) is distinguishable; for there the bill was to recover back money lent, and no discovery seemed necessary. Lord Thurlow there said: As to an account, this is only of a repayment of money, and that the money for which the teas sold should be deducted. As it

(a) See Haywood v. Hutchins, 65 N. Car. 574 (as to disconnected accounts of both parties); Frue v. Loring, 120 Mass. 507.

(b) Mere complication of accounts, without any relation of trust, is enough to give equity jurisdiction. Kimber

ley v. Dick, L. R. 13 Eq. 1; Watford Ry. Co. v. London Ry. Co., L. R. 8 Eq. 231; Seymour v. Long Dock Co., 5 C. E. Green, 396.

403.

(c) Dallas v. Timberlake, 54 Ala

But in such a case if no discovery is asked or required by the frame of the bill, the jurisdiction will not be maintainable.1 And a fortiori where there are no mutual demands but a single matter on one side, and no discovery is required, a Court of Equity will not entertain jurisdiction of the suit, although there may be payments on the other side which may be set off; for in such a case there is not only a complete remedy at law, but there is nothing requiring the peculiar aid of equity to ascertain or adjust the claim. To found the jurisdiction in cases of a claim of this sort there should be a series of transactions on one side and of payments on the other.

458 a. So it has been said that if there be a bill for an account in respect of particular items or any number of particular items, and the plaintiff fails in sustaining the demand upon those particular items, and the bill happens to contain a general vague charge that there are voluminous and intricate accounts between the parties, and which charge is inserted merely as a pretext for the purpose of bringing the case within the jurisdiction of a Court of Equity, the court in so vague and uncertain a case will disregard that general allegation, will consider it as struck out of the bill, and not allow it to protect the bill against a demurrer for want of equity.' 3

stood originally therefore the bill could not have been supported.' In Frietas v. Don Santos (1 Y. & Jerv. 574) the Court of Exchequer said: 'It is the settled practice at this time that if a bill be filed for a discovery the relief is made ancillary to it; and the party must stand or fall by the discovery, &c. It is not every account which will entitle a Court of Equity to interfere. It must be such an account as cannot be taken, justly and fairly, in a Court of Law.' The same doctrine was asserted in King v. Rossett (2 Y. & Jerv. 33), which was a bill by a principal against his agent for discovery and relief. Lord Chief Baron Comyns, in his invaluable Digest (Chancery, 2 A.), lays down the principle broadly upon his own authority that chancery will oblige any one to give an account for money by him received.'

1 Dinwiddie v. Bailey, 6 Ves. 136; Frietas v. Don Santos, 1 Y. & Jerv. 574; King v. Rossett, 2 Y. & Jerv. 33; Cooper, Eq. Pl. 134; but see Mackenzie v. Johnston, 4 Madd. R. 374; Massey v. Banner, 4 Madd. R. 416; Com. Dig. Chancery, 2 A.

2 Wells v. Cooper, cited in Dinwiddie v. Bailey, 6 Ves. 139; Foster v. Spencer, 2 John. Ch. R. 171; Moses v. Lewis, 12 Price, R. 502; King v. Rossett, 2 Y. & Jerv. 33; 1 Madd. Ch. Pr. 70, 71.

3 Darthez v. Clemens, 6 Beav. R. 165, 169. On this occasion Lord Langdale said: It therefore comes to this, Does this bill contain such vague and general statements, statements put in merely as a pretext for transferring the jurisdiction from the Court of Law to this court? If the account can be fairly