Page:Harvard Law Review Volume 2.djvu/261

 EQUITY JURISDICTION. 243

would have learned ; but such is not the fact. Partly from an in- disposition among equity lawyers to study common-law learning, which common-law lawyers regard as obsolete, and partly for another reason, the obligation to account has never been well understood by equity lawyers. The other reason is the wide, in- determinate, and vague sense in which the term "account" has always been used in equity. It has been usual to call all bills in equity which may involve a reference to a master to take an account of any kind or for any purpose (and such bills are many in number and very diverse in character) bills for an account, especially as often as it has been found necessary to give them that name in order to sustain them in point of jurisdiction ; and the fact has not been recognized that such bills are true bills for an account only when they are founded upon a legal obligation to render an account, and that in all other cases they rest upon some other principle in point of jurisdiction.

The obligation to render an account is not founded upon con- tract, but is created by law independently of contract. Of course there may be in terms a promise or a covenant to render an ac- count, or a bond may be upon the condition that the obligor render an account, and such promise,^ covenant,^ or bond* may support an action at law, but neither of them will ever create an obligation to account, any more than a promise to pay a definite sum of money will create a debt ; for if the facts from which the law raises such an obligation do not exist, the obligation will not exist, notwithstanding such promise, covenant, or bond ; and if such facts do exist, the law will raise the obligation to account in- dependently of the promise, covenant, or bond, and the latter will be entirely collateral to the former.*

What then are the facts which must exist in order to induce the law to raise an obligation to account } First, the person upon whom such an obligation is sought to be imposed (and whom we will call the defendant) must have received property of some kind not belonging to himself ; for otherwise he will have nothing to

1 Spurraway v, Rogers, 12 Mod. 517; Wilkin v, Wilkin, i Salk. 9, i Show. 71, G>mb. 149, Garth. 89; Owston v. Ogle, 13 East, 558; Topham v. Braddick, i Taunt 572.


 * Barker v. Thorold, i Wms. Saund. 47.


 * Vere v. Smith, 2 Lev. 5, i Ventr. 121; Anon, i L. P. R. (ist ed.), 32.

Accompt (A), pL 15, i Rol. Rep. 52; Anon., Dyer, 51* pi. 14. See Bro. Abr., Accompt pi. 60.
 * I Rol. Abr., Accompt (A), pi. 5,8; Hawkins v. Parker, 2Bulstr. 256, i Rol. Abr„