Page:Harvard Law Review Volume 2.djvu/275

 EQUITY JURISDICTION. 257

assumption be made, the defendant will be deprived of the de- fence that the fund has been lost without his fault ; and he will also be deprived of the defence that the fund, or some portion of it, has been expended by the defendant for the plaintiff and by the plaintiff's authority ; unless another false assumption be made, namely, that money paid by the defendant out of the fund consti- tutes a debt in his favor, and so a defence by way of set-off or counter-claim. If the false assumption be made that indebitatus assumpsit for money had and received will lie upon an obHgation to account, though such an obligation constitute no debt, that is equivalent to saying that such action shall be allowed to perform the function of an action of account, or of a bill in equity for an account. If the reader ask why not, and be not satisfied with the answer that to allow this would be to allow a plaintiff who has alleged one thing to recover upon proving a wholly different thing, it may be added, first, that nothing whatever would be gained by such a perversion of remedies ; that the action of account eventually proved a failure, not because it was badly or defectively constructed, but because it attempted to accom- plish what was beyond the powers of common-law courts ; sec- ondly, that the enforcement of an obligation to account necessarily involves two successive stages of litigation, with two sets of plead- ings and two trials ; and that only the first of the two trials is before a jury, even at common law, the second being before judi- cial officers, namely, before auditors. To attempt, therefore, to enforce such an obligation by an action which has but one stage of litigation, but one set of pleadings, and but one trial, would be not only to involve the court in incredible confusion in point of procedure, but to compel the defendant to account before an in- competent and illegal tribunal, namely, a jury. Yet this seems to have been the idea of Lord Mansfield, if we may judge from the case of Dale v, Sollet.^

1 4 Burr. 21 33. The defendant in this case had collect ed;{^ 2,000 for the plaintiff as the plaintiff's agent, and he had paid over to the plaintiff all but ;^40, which he claimed to re- tain as a compensation for his services. This latter sum the plaintiff' sought to recover in an action of assumpsit for money had and received. The defendant having pleaded only the general issue, the plaintiff objected that, upon that issue, the defendant could not avail himself of his right of retainer, but that he should have pleaded his claim for ser- vices as a set-off. This objection, however, was overruled, Lord Mansfield saying : *' The plaintiff can recover no more than he is in conscience and equity entitled to : which can be no more than what remains after deducting all just allowances which the defendant