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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; namely, 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, although 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 although some efforts have been made in modern times to resuscitate it, it has in England fallen into almost total
disuse.1 Courts 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.2 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. Upon such legal obligations however suits, although 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. (a)
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. Gwillim, 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, pp. 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; Crousillat 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), pp. 13, 14; Bac. Abridg. Accompt B.
8 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. Willshear, 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, pp. 25, 26; Wilkin v. Wilkin, Salk. 9;
(a) The decision as to the proper tribunal is governed largely by the question of convenience in taking the accounts. Shepard v. Brown, 4 Giff.
208. Compare Jones v. Newhall, 115 Mass. 244, 251; editor's note to § 33, ante, near end.
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. Further 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 favor.' 1
444. 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.
445. 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 against a guardian in socage.2 An exception indeed, or rather an extension of the rule, was for the benefit of trade and the advancement of commerce
3 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.
2 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.
1 Bac. Abridg. Accompt. See also 1 Eq. Abridg. p. 5, note (a); Anon. 1 Vern. 283; Wicherly v. Wicherly, 1 Vern. 470; Marshfield v. Weston, 2 Vern. 176.
allowed in favor of and between merchants; and therefore by the law merchant, one naming himself a merchant might have an account against another naming him a merchant, and charge him as receiver. 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. 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.1
446. 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; or 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 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. 16.8 The
1 Co. Litt. 172 a; Earl of Devonshire's Case, 11 Co. R. 89.
2 Buller's N. P. 127; 1 Eq. Abridg. 5, note (a); 2 Fonbl. Eq. B. 2, ch. 7, § 6, and note (n); Co. Litt. 172 a; 2 Inst. 379; Sargent v. Parsons, 12 Mass.
& Co. Litt. 90 b; 2 Fonbl. Eq. B. 2, ch. 7, § 6, and note (n). 4 Ibid. ; Bull. N. P. 127; Earl of Devonshire's Case, 11 Co. R. 89. 52 Fonbl. Eq. B. 2, ch. 7, § 6, note (n); 1 Eq. Abridg. 5, note (a). 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. Talb. 38, 41.
7 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.
Ibid.; 3 Black. Comm. 164.
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.1 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 exception was provided (as it was said) by the law of the land in favor of merchants and for the advancement of trade and traffic. So that it will be at once perceived from these cases (and many others might be mentioned) that the remedy at the common law was very narrow; and although it was afterwards enlarged, that would not of itself displace the jurisdiction originally vested in Courts of Equity.
446 a. 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, and then have his action of debt for the arrearages; or in more modern times an action on the case, or insimul computassent. And the accountant, if aggrieved, might have his writ of ex parte talis, to re-examine the account in the Exchequer. The other proceeding of the plaintiff was, in the first instance, by way of a writ of account. The process by which this latter remedy might be made more effectual is particularly described in the statute of Marlebridge and the statute of Westminster 2d, upon which it is unnecessary to dwell.*
447. In the action of account there are two distinct courses of proceeding. In the first place the party may interpose any
1 Co. Litt. 172 a; 2 Fonbl. Eq. B. 2, ch. 7, § 6, and note (n). 2 Co. Litt. 172 a.
See Bac. Abridg. Accompt B., C.; Com. Dig. Accompt A., B., Reeves, Hist. Law, 337, 338, 339; 3 Reeves, Hist. Law, 75; 4 Reeves, Hist. Law, 388.
• Com. Dig. Accompt A. and note (a); 3 Reeves, Hist. Law, 75, 76.