Page:Harvard Law Review Volume 2.djvu/272

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HARVARD LA W RBVIBW,

of payment by the plaintiff, and a refusal or failure to pay by the defendant, will establish a conversion, and thus enable the plaintifif, at his option, to maintain debt or indebitatus assumpsit. In this class of cases, therefore, the misconduct of the defendant enables the plaintiff to elect between holding the defendant to his obliga- tion to account, and converting him into a debtor.

There is also a class of cases in which the obligor has an elec- tion to convert an obligation to account into a debt, namely, the class of cases, before referred to, in which one who has received specific property, for which he is accountable, and has converted the same into money, is entitled to appropriate the money to his own use, and does so. In such cases, however, the plaintiff is still entitled to enforce the obligation to account for the purpose of ascertaining the amount for which the defendant is liable, though it is only as a debt that he can enforce payment of the amount which the defendant has rightfully appropriated to his own use.

Of course both parties to an obligation to account may always convert such obligation into a debt, by agreeing that the obligor shall retain, as his own, the property for which he is accountable, and in exchange for it shall become indebted to the obligee in an agreed amount. In this way the obligation to account is wholly extinguished, and hence the obligee can never bring any action of account. Moreover, the parties often bring about this result with- out any actual intention to do so, namely, by settling the account between them, and striking a balance ; for in this way the obliga- tion to account is completely performed and extinguished ; and if an action of account be afterwards brought upon it, such action may be defeated by the plea of plene computavit. The balance therefore necessarily becomes a debt, and can be recovered only as such. In ancient times such a balance was recovered by an action, called an action of debt for the arrearages of an account. In modern times it may be recovered by an action of debt or of indebitatus assumpsit upon an insimul computassent or account stated.

All the foregoing observations are, as will be seen, entirely con- sistent with the rule, that an obligation to account will support no common-law action, except an action of account ; and that rule is believed to be subject to no exception whatever.

Undoubtedly, the distinction between a debt and an obligation