Page:Harvard Law Review Volume 2.djvu/271

 BQUITT JURISDICTION. 253

an obligation to account, who had authority to make payments op behalf of the obligee, was entitled to bring an action of account against the latter, alleging that there was a balance in his favor ; but this is doubtful upon authority.^

If the money or other property for which the defendant was ac- countable had been lost without his fault, he was not liable for it ; and therefore proof that it had been so lost always constituted a good account.*

When a proper account had been taken by the auditors and de- livered into court, if it showed a balance in the plaintiff's favor, a final judgment was rendered that the plaintiff recover such balance ; but if the account showed a balance in the defendant's favor, all that the court could do for him was to dismiss him with costs ; it could not render a judgment that he recover such balance, as it could render such a judgment only in favor of a plaintiff. Since, however, the taking of the account had converted the balance in the defendant's favor into a debt, the defendant could enforce pay- ment of it by an action of debt ^ or of indebitatus assumpsit.

Are there any other common-law actions that will lie upon an obligation to account } The only other actions which it has ever been supposed would lie are debt and indebitatus assumpsit ; but to sustain either of these actions, a debt is indispensable ; and to say that an obligation to account can ever constitute a debt is a plain contradiction. An obligation to account may, indeed, be converted into a debt ; and when that is done, of course debt or indebitatus assumpsit will lie. Thus, if a defend- ant, having money in his hands for which he is bound to account to the plaintiff, appropriates or converts such money to his own use, the plaintiff, if the amount of the money be definite and certain, so that no account is necessary to ascertain its amount, may adopt and sanction the defendant's wrongful act, and thus convert the defendant into a debtor ; * and it seems that a demand

IF. N. B. 116Q, n. (c).

2 Vere v. Smith, 2 Lev. 5; 1 Ventr. 121.

» Gawton v. Lord Dacres, i Leon. 219; s. c, nom. Lord Dacret' Case, Owen, 23; Bro. Abr., Accompt, pL 62, Dette, pi. 130, 182, Ley Gager, pi. 62, 65.

over, and he doth not, but converts the money to his own use, I may elect to have an action of account against him, or an action on my case; but a stranger hath no other remedy than an action of account." Per Frowyk, C. J. Anon., Keilw. 77 a, 77 b, pL 25, Mich. 21 H. 7.
 * Lamine v, Dorrell, 2 Ld. Raym. 12 16. " If I deliver money to a man to deliver