judgment by garnishee process does not deprive him of the right to seek relief in equity.32 It was said that a receiver, assignee in bankruptcy, or assignee under a voluntary general assignment, each of whom represents creditors as well as the debtor, cannot maintain a bill to enforce a collateral obligation given to a creditor or to a body of creditors by a third person for the payment of the debts of the insolvent.33 § 151d. Bills for accountings. Equity will entertain a bill to compel an accounting by persons standing in a trust relation to the plaintiff, and by those against whom an action for account render would lie at common law, namely, guardians in socage, bailiffs, receivers, and merchants in their dealings with each other, but not otherwise, unless the accounts are mutual, or very complicated and intricate, or the accounting is supplemental to some other equitable relief." 30. 32 Feidler v. Bartleson, 161 Fed. 33 Jacobson v. Allen, 12 Fed. 454. § 151d. 1 Pacific R. of Mo. v. Atlantic & Pac. R. Co., 20 Fed. 277; Fowle v. Lawrason, 5 Pet. 494, 502, 8 L. ed. 204, 206; Littlefield v. Perry, 21 Wall. 205, 22 L. ed. 577; Providence Min. & Mill Co., v. Nocholson, C. C. A., 178 Fed. 29; Morris & Co. v. Whitley, C. C. A., 183 Fed. 764. 2 Cited with approval by C. C. A. of the Fifth Circuit, Morris & Co. v. Whitley, C. C. A., 183 Fed. 764, 765; Mitchell v. Manufacturing Co., 2 Story, 648; Linson v. Hutton, 98 U. S. 79, 25 L. ed. 66; Fowle v. Lawrason, 5 Pet. 494, 502, 8 L. ed. 204, 206; U. S. v. National Bank, 73 Fed. 379. 3 Bispham's Equity, § 481; 1 Co. Litt. 90 b; 1 Co. Litt. 172 a; Bacon's Abr., Account, A.; Buller's Nisi Prius, 127; Earl of Devonshire's Case, 11 Coke, 89. 4 Root v. Railway Co., 105 U. S. 189, 26 L. ed. 975; Consol. Safety Valve Co. v. Ashton Valve Co., 26 Fed. 319; Lord v. Whitehead, etc., 5 Tenno v. Primrose, 116 Fed. 49; Fechteler et al. v. Palm Bros. & Co., C. C. A., 133 Fed. 462. 6 Cited with approval by Judge Hazel, Harvey v. Sellers, 115 Fed. 757, 758, and by C. C. A. of the Fifth Circuit, Morris & Co. v. Whitley, C. C. A., 183 Fed. 764, 765. Kil. bourn v. Sutherland, 130 U. S. 505, 32 L. ed. 1005; John Crossley Sons v. New Orleans, 20 Fed. 352; Pacific R. Co. v. Atlantic & Pac. R. Co., 20 Fed. 277; Gunn v. Brinckley C. W. & Mfg. Co., C. C. A., 66 Fed. 382; Baker v. Biddle Bald. 394; Blakeley v. Briscoe, Hempst. 114; Hattiesburg Lumber Co. V. Herrick, C. C. A., 212 Fed. 834. (Where relief obtainable at common law was also prayed.) But see Lord v. Whitehead, etc., Mach. Co., 24 Fed. 801; Adams v. Bridgewater Iron Co., 26 Fed. 324; Hagenbeck v. Hagenbeck Zoo A. Co., 59 Fed. 14. Hattiesburg Lumber Co. v. It was held, that equity could take jurisdiction of a suit by the United States against the clerk of a court for an accounting of transaction during a period of seven years. That a judgment creditor may sue a city for an accounting of taxes collected by the defendant which had been pledged for the payment of the complainant's demand. A bill to compel an account by one partner to another will be sustained although an action for account rendered might lie at common law.10 A bill for an accounting may be filed, under a contract between two large mercantile houses, requiring each to render to the other, an annual account of its entire business, and to pay a certain percentage of its gross profits. It has been held: that a factor, whose dealings with his principal were numerous, may file a bill for an accounting.12 It has been said that, wherever the State practice authorizes a reference of a complicate account in an action at law, the Federal court should take jurisdiction of the case in equity.18 An unsecured creditor upon allegations of fraudulent diversion of assets may sue for an accounting by a corporation which controls his corporate debtor.14 It has been held that there is jurisdiction in equity to open a closed account, although there is a remedy at law, in a case where, were the accounts still open, equity might have entertained a bill for an accounting.15 A bill in equity is the proper remedy to enforce a decree made by another court of equity for an accounting 16 A bill will not be sustained which seeks an accounting of commissions due an insurance agent upon premiums already paid although it also prays that defendant be required to account for the commissions that may become due on premiums Herrick, C. C. A., 212 Fed. 834 (where relief obtainable at common law was also prayed). 7 Rubber Co. v. Goodyear, 9 Wall. 788; Root v. Railway Co., 105 U. S. 189, 26 L. ed. 975. 8 U. S. v. Harsha, 188 Fed. 759. 9 City of New Orleans v. Fisher, C. C. A., 91 Fed. 574. 10 Kebart v. Arkin, C. C. A., 232 Fed. 454 (a Pennsylvania partner 11 Fechteler v. Palm Bros. & Co., C. C. A., 133 Fed. 462. 12 Fenno v. Primrose, 116 Fed. 49. 13 McMullen Lumber Co. V. Strother, C. C. A., 136 Fed. 295. 14 Valley v. Denver & R. G. R. Co., C. C. A., 236 Fed. 176, 182. 15 Bischoffsheim v. Baltzer, 20 Fed. 890. 16 Collins v. Bradley Co., 227 Fed. 199. to be paid in the future.17 A demurrer was sustained, to a bill to compel an account of profits made by a purchasing agent, who, it was charged, had sold to the complainant, large quantities of merchandise secretly owned by himself at a price greatly in advance of what he paid for the same; although the agent was a director of the complainant corporation, and the suit was brought against his personal representatives after his decease; when there was no allegation that the agent's books were fraudulently kept, nor that any different evidence or information could be obtainable in equity than that obtained at law; there being, however, an allegation that the accounts consisted of many thousands of items.18 It has been held that the holder of a tontine policy of life insurance cannot compel an accounting by his insurer except under special circumstances. 18a Accountings in patent cases have been previously explained." When a settlement of accounts is attacked in a case where, had it not been for the settlement, the complainant would have been entitled to an accounting, if he sets aside the settlement, he is entitled to a full accounting without specification in the bill of the items of which he claims.20 Where a bill alleged that the defendant was in wrongful possession of plaintiff's land and had continuously mined coal on the premises for eleven years and was still mining coal there, the exact quantity of what he had mined being unknown, but exceeding in value the sum of $3,000 was held to be a "fishing bill" and insufficient to require an accounting.21 According to the later authorities, the bill need contain no offer by the complainant to pay the balance, if any, found due against him.22 Anciently such an offer was requisite.23 Upon a bill for an accounting the defendant can obtain affirmative relief without a cross bill or a counterclaim.24 After 17 Hicks v. Penn. Mut. Life Ins. Co., 210 Fed. 464. 18 American Spirits Mfg. Co. v. Easton, 120 Fed. 440. 18 Hunton v. Eq. Life Ass 'n S'y., 45 Fed. 661; Peters v. Eq. Life Ass'n S'y., 149 Fed. 290. 19 § 146, supra. 20 Lovewell V. Schoolfield, 217 Fed. 689. 21 Childs v. Missouri K. & T. Ry. Co., 221 Fed. 219. 22 Columbian Government v. Rothschild, 1 Simons, 94, 103; Wells v. Strange, 5 Ga. 22. 28 Godbolt v. Watts, 2 Anst. 543, infra, § 153. 24 Fife v. Clayton, 13 Ves. 546; Stapylton v. Scott, 13 Ves. 425; Bradford v. Union Bank of Tenn., the right to an accounting has been adjudicated,25 the accounts are usually referred to a master.26 The Judge may himself, however, take the account.27 The proceedings upon accountings are subsequently explained.28 § 151e. Bills for specific performance. Bills for specific performance of contracts to convey land are amongst the earliest forms of equitable relief. They were filed in the Court of Chaneery as far back as the reign of Richard II. They are supported on the ground that equity considers that done which ought to be done and holds the owner of the legal title to be trustee for him to whom he has agreed to convey the land.2 As no two pieces of land are exactly alike, equity considers that in no case can damages in money be adequate compensation for the breach of a covenant or other contract affecting land.3 Accordingly, the specific performance of contracts for the purchase or sale of land and of covenants affecting the same, will be specifically enforced with the aid of an injunction, whenever they are mutual, certain, not unconscionable, and their enforcement would be practicable.7 Equity hesitates before granting relief to enforce specific performance of contracts which do not affect land. When the 13 How. 57, 14 L. ed. 49; Northern R. Co. v. O. & L. C. R. Co., 18 Fed. 815. But see s. c., 20 Fed. 347. See Newton v. Gage, 155 Fed. 598; Detering v. Nordstrom, C. C. A., 148 Fed. 81. 25 As to the preliminary proof required before a reference for an accounting, see Columbian Eq. Co. v. Merc. Tr. & D. Co., C. C. A., 113 Fed. 23; § 389 infra. 26 See §§ 384, 389 infra. 27 Pepper v. Addicks, 153 Fed. 383. 28 Infra, § 389. § 151e. 1 Ch. Cal. II, p. 2. 2 Tempore Rich. II; Lord Scales v. Felbrigg, Ch. Cal. II, p. 26; Tempore Hen. VII; Bracton Lib. II, c. 27, fol. 61b. Fed. Prac. Vol. I-57 3 Adderly v. Dixon, 1 Sim. & Stu. 607; Bispham's Eq., § 375. 4 Dorsey v. Packwood, 12 How. 126, 13 L. ed. 921; Bispham's Eq., § 377. 5 Colson v. Thompson, 2 Wheat. 336, 4 L. ed. 253; Bispham's Eq., § 377. 6 Surget v. Byers, Hempst. 715; Roundtree v. McLain, Hempst. 245; Miss. & Mo. R. Co. v. Cromwell, 91 U. S. 643, 23 L. ed. 367; Bispham's Eq. § 376. See Randolph's Ex'r v. Quidnick Co., 135 U. S. 457, 34 L. ed. 200. 7 Ross v. Union Pac. R. Co., 1 Woolw. 26; Fallon v. Railroad Co., 1 Dill. 121; Texas & Pac. Ry. Co. v. Marshall, 136 U. S. 393, 34 L. ed. 385; Bispham 's Eq., § 377. compulsion of the specific performance of a contract would compel the continuous supervision by the Court, equity will usually refuse to interfere. Thus, except perhaps under special circumstances, a court of equity will not compel specific performance by either party to a contract for the construction of a rail road. Nor to seize a man's property, and through its officers complete a bridge in pursuance of a contract which he has made, 10 As early as the reign of Edward IV it was held that specific performance of a contract to build could be decreed." But the adequacy of the plaintiff's remedy at law, as he could have the work done by a stranger to the contract, as well as the difficulty of supervision, afterwards led the courts to refuse to take jurisdiction in the case of an ordinary building contract.12 Where, however, the building is to be done on land conveyed to the defendant as consideration the plaintiff can obtain the expected benefit in no other way; and in such cases the courts do not always find insurmountable the difficulty that supervision of the construction or even of indefinite maintenance is involved.13 Equity has refused to compel specific performance of a mining lease. 14 Under ordinary circumstances equity will not compel a railway company to maintain its permanent terminus at a certain place.15 Bills were sustained: to compel specific performance of a covenant, to construct and to maintain a station upon land which the complainant had conveyed to a railroad company, 16 and of a contract between a railroad and a telegraph company, authorizing the maintenance and operation of the telegraph line upon the railroad company's right of way, 8 Errington v. Aynesly (A. D. 1788), 2 Bro. Ch. 341; Lucas v. Commerford (A. D. 1790), 3 Bro. Ch. 166; Blue Point Oyster Co. v. Haagenson, 209 Fed. 278. 9 Strang v. Richmond, P. & C. R. Co., 93 Fed. 71. See also Fallon v. Railroad Co., 1 Dill. 121; Ross v. Union Pac. Ry. Co., 1 Woolw. 26. 10 Texas & St. Louis Ry. Co. v. Rust, 17 Fed. 275. 11 Year Book, 8 ed. IV. 4. 12 Errington v. Aynesly (1788), 2 Bro. Ch. 341; Lucas v. Commerford (1790), 3 Bro. Ch. 166. 13 Hood v. N. E. R. Co. (1869), L. R. 8 Eq. 666; Gregory v. Ing wersen (1880), 32 N. J. Eq. 199; Lawrence v. Saratoga Lake R. Co. (1885), 36 Hun. 467; Jones v. Parker (1895), 163 Mass. 564, 47 Am. St. Rep. 485, 40 N. E. 1044. 14 Browning v. Boswell, C. C. A., 215 Fed. 826. 15 Texas & Pac. Ry. Co. v. Mar shall, 136 U. S. 393, 34 L. ed. 385. 16 Murray v. Northwestern R. Co., 64 S. C. 520, 42 S. C. 617. |