Page:Harvard Law Review Volume 4.djvu/123

107 EQUITY JURISDICTION. 107 after the trial; i,e.y the trial ended in a verdict, and upon the verdict judgment was rendered. If any account was to be taken, therefore, in either of these actions, it must be taken at the trial ; and yet it was never claimed that an account could be taken by or before a jury. But the difficulty was not confined to the tribunal by or before which the account must be taken. It was more fundamental. An account is rendered in discharge of an obligation to account. It is rendered, not for the benefit of the party rendering it, but for the benefit of the party to whom it is rendered, the latter having acquired a right to have it rendered. It may, of course, be rendered voluntaril}', just as any obligation may be voluntarily performed ; or it may be rendered by compulsion, i.e.y by the compulsion of an action or suit. When rendered by compulsion, it is rendered pursuant to the judgment or decree of a court. This judgment or decree may be the result of a trial, or it may be pronounced upon the defendant's admissions, according as the defendant denies or admits his obligation to account; but in either case the accounting is the primary object for which the suit is brought (the ultimate object being the payment of what- ever the plaintiff shall be entitled to receive as the result of the accounting), and in either case, therefore, the accounting is by way of relief. When, however, an executor sets up a want of assets in an action of debt or indebitatus assumpsit brought against him by a creditor of his testator, he does so, as we have seen, by way of affirmative defence, and the setting up of an affirmative defence is a very different thing from rendering an account. An affirmative defence is always set up voluntarily, and for the defendant's own benefit. Instead of coming after a judgment or decree, it comes before the trial, and the setting of it up is a step leading up to the trial. Instead of being an object of the plaintiff's action, it is one of the means by which the defendant resists the action, — instead of being the relief for which the action was brought, it is a means of preventing the plaintiff from obtaining any relief. Moreover, an affirmative defence always consists of facts, of which truth or untruth may be predicated ; and when such a defence is set up in an action at law, as the truth of the plaintiff's declaration stands admitted, the trial turns entirely upon the truth or untruth, the validity or invalidity, of the defence. If the defence turn out to be