Kerr v. Camden Steam Boat Co.

Curia, -per

Harper, Ch.
Though it may not be easy ter define, by, a general rule, the class of cases in which a bill will lie for an account, yet, I think, there can be no doubt with respect to the present one. That an equitable jurisdiction exists in cases of complex and intricate accounts, between whatever parties, though an action might be maintained at law, and though no discovery be needed, the authorities have settled, beyond question. Such is the conclusion of Justice Story, whose work was cited in argument. (1 Sto. Eq. 433, §451. See, also, Mift. Pl. 96, and O'Connor vs. Spaight, 1 Sch. & Lef. 309.) It is true that, in some cases, it is said that there must be a series of mutual demands; not merely demands on one side and payments on the other. Yet, this *195Is to ‘be taken with some qualification , for, in the case of The Corporation of Carlisle vs. Wilson, (13 Ves. 276,) though the demands were all on one side, and all of them admitted to be of a legal nature, yet the bill was held to lie. The question always is, whether there be an adequate remedy at law 1

The case stands on a different footing, when there is a relation of privity between the parties, such as that of bailiff, receiver, agent, or steward. It is said by Justice Story, and was -quoted in argument, that if the account is all on one side, and mo discovery be needed, the bill will not lie. But, if the bill is .against a person standing in such a relation of privity, it is always taken for granted, that a discovery is needed. It is said in McKenzie vs. Johnston, (4 Madd. 375,) that wherever the relation of agent exists, the bill will lie for an account. The party is entitled to discovery, and to have the account set out. It was where such a relation of privity existed, that the action of account lay at common law. (1 Bac. Ab. Tit. Accompt.) And is it questioned, but that the proceeding in Equity has .superceded the action of account! For the circumstances which rendered that action an inadequate remedy, see 1 Sto. Eq. 426, et seq; Jer. Eq. Jur. 504. A separate issue was sent Fy the auditor, to be tried upon every contested item.

But though a bill will lie against such an agent, upon a supposition that discovery is needed, will it lie in his favor, when he is not supposed to need any discovery? I know of no instance, within the Chancery jurisdiction, in which there is not a mutuality of remedy. A specific performance of a contract for the purchase of land is enforced in favor of the purchaser, because he is supposed to want the thing in specie. The vendor is also allowed to enforce it though there is no such reason, and he has plain and adequate remedy at law. It is a matter of familiar practice, that an executor comes into Court, to settle his accounts, and to be reimbursed, if he has advanced more than the parties were entitled to; though he *196needs no discovery, and might recover, at law, money paid by mistake. It is not doubted, but that the action of, account lay, in favor of either party, that the balance on either side might be ascertained. A party may come to have an account allowed. (2 Caines. Ca. 1, 3, 52, 53.)

When it is said that there is plain and adequate remedy at law, in this case, I do not suppose the action oí account to be meant, which has so often been decided not to afford an adequate remedy. Let us examine the adequacy of the remedy in an action of assumpsit. In Chancery, the practice is, that the accounting party “discharges himself by his affidavit, without voucher, when the amount of the item is under 40s. and by his affidavit, with the production of the voucher, when the demand is above 40 shillings, if no objection be taken. If any party objects, the person must be examined to whom the money was paid; if this cannot be done, the signature to the voucher must be proved.” Bingham vs. Clanmorris, (12 Eng. C. C. R. 12.) If an objection be taken before the master, time is allowed to procure the necessary proof, and if the objection be. captiously and unnecessarily taken, the party may be made responsible in costs.

Very different is the case where the party comes before a jury. Here he must be prepared to prove by witnesses every charge that he has made, even to the smallest item of personal expenditure. Here is an account, containiug some hundreds of items, of money disbursed to a great number of individuals, many of them residing in other states. Preparatory to trial, it will be necessary to send commissions to prove the payments to these last,, at an enormous expense. All witnesses within the jurisdiction of the Court must be summoned personally. From their great number, it is not probable that all could ever attend at one time, and the plaintiff must either be indefinitely hung up, or submit to lose a portion of his demand. Once before the jury, there can be no time al*197lowed to supply any deficiency of proof. It is not necessary that the defendant should object. He has only to be silent, and the plaintiff must produce his proof. The vouchers are signed in a great variety of hand writings, and there is no reason for supposing that the plaintiff will be able to find a single witness capable of proving more than one of them. There would be a different abuse from that which has existed in the action of account. There might be fifty contested issues to be tried under one. The answer of the defendant suggests several issues, which probably would be greatly litigated. It would be a mockery of justice and of the complainant to say that he has an adequate remedy at law. It is on such reasons that Lord Ridesdale says, (Milf. Pl. 96,) that “though accounts may be taken before auditors in a Court of Common Law: yet, a Court of Equity, by its modes of proceeding, is enabled to investigate, more effectually, long and intricate accounts in an adverse way, and to compel payment of the balance, which ever way it turns.” Such reasons governed in the case of The Corporation of Carlisle vs. Wilson. That was a bill to have an account of tolls which the defendant had become liable to pay for the last six years, by carrying goods through the streets of Carlisle. It was admitted that indebi-tatus assumpsit would lie, but, the Chancellor said, “how can a case of this kind be tried at the assizes; an account to be surcharged, upon which every inhabitant of Carlisle might be examined.”

This is very different from the case of a merchant, or even factor, who, by proving his own book, or, probably by the testimony of one or two clerks, might be able to prove his whole case. I do not mean to say, though some of the cases express it very generally, that a bill will lie against every agent, if only to do a single act, or it appears that no account is necessary. It is not practicable, however desirable, to draw, with perfect precision, the line of ju*198risdiction. But, I am prepared to say, that where there is a continuing agency, and it is the business of the agent to disburse money to third persons, on account of his principal, a bill will lie for or against such agent. Such, I understand to be the case of the bailiff, receiver, or steward, and there is no reason applying to them, which will not apply with equal force in the present case. I think the decree should be affirmed.

Johnson, Ch., concurred.

J ohnston, Ch.
I am by no means sure that, in my habitual cautiousness not to assume a doubtful jurisdiction for this Court, I did not express myself too strongly against the plaintiff’s case, upon some of the grounds taken by his counsel. Certainly there are cases in which, from the very complexity of the accounts to be examined, Courts of Law are incapable of doing competent justice. The case of White vs. Williams, (8 Yes. 193,) was upon a bill by an heir and devisee of his father, against trustees under a conveyance of estates by the father; in which the plaintiff prayed an account of the administration of the trusts, and claimed a re-conveyance upon its appearing that they were fully satisfied. Now, suppose that in such a case, instead of having an equitable right to a re-conveyance, the plaintiff had had a purely legal right, depend-ant upon the administration of the trustees, is it not manifest that a Court of Law could not have entered into the enquiry necessary to determine whether that right had, or had not occurred 1

In O’Connor vs. Speight, (1 Sch. & Lef. 305,) the defendant had, in 1780, demised certain premises to the plaintiff for three lives, at 20 shillings an acre, for every acre the premises might contain. The plaintiff entered, although the number of acres was not ascertained; and for sixteen years, was m the *199Constant habit of accepting the defendant’s bills, paying money to' his order, selling him goods on credit, and supplying him and his family with money; but, no regular payment of rent, eo nomine, appeared to have been made; nor had the defendant given him any receipts in full for precise gales, (an Irish expression for stated payments.) The defendant having brought ejectment for non-payment of rent, the plaintiff filed his bill for an account, on the foot of the dealings between them, and that a balance claimed by him, after deducting the rent, might be allowed him; and praying an injunction against the ejectment. The Lord Chancellor, Ridesdale, maintained the jurisdiction, upon the ground that, although the mutual demands were legal, the account was complicated; and that a Court of Law was incompetent to examine it, at nisi prim, with the accuracy necessary to determine whether a balance was due the plaintiff.

I do not quote this case with a view to put the one before us upon the ground of complicated accounts, in which the Court has a discretion to act, (13 Ves. 278 ;) but to exclude the conclusion that, in a case clearly of that kind, I would hesitate to exercise the jurisdiction of this Court. It was the less necessary to look into the character of the accounts in this case, because, as I conceived, there was another ground upon which the jurisdiction might be confidently rested; and I still retain that opinion.

Professor Story, in his Commentary on Equity Jurisprudence, (1 Story, chap. 4, p. 93,) tracing the concurrent jurisdiction of this Court, assigns, as one of its sources, the inability of Courts of Law, in some instances, to give perfect relief y which occurs, says he, “in all cases, when a simple judgment for the plaintiff or for the defendant does not meet the full merits and exigencies of the case, but a variety of adjustments, limitations and cross claims are to be introduced and finally acted on, and a decree, meeting all the circumstances *200of the particular case between the very parties, is indispensable to complete distributive justice.”

The plaintiffs case comes, I think, clearly within this principle.

Admitting that he might have sued at Law upon his side of the account, would that have given him “adequate relief,” in the case he has stated ? The defendants might have kept suspended over him an indefinite liability for his administration of the trust they had committed to him. Complete justice entitled him to the balance, if any, which was due him, clear of all further accountability. As the defendants might have called him to account here, as their trustee, I think that, even if he claimed no balance, he had a right to call them in to render his account to them, and to be discharged. I think it not doubtful that between trustee and cestuyque trust, the right is mutual; that wherever, for instance, an executor or other trustee may be called to account, he has a right to come forward and terminate his responsibility by rendering his account and having it allowed. And if this be so, much more is the trustee entitled to the jurisdiction, to set off what may be found against him and recover a balance due him. I put this case upon that ground; and go no further. The decree is affirmed,

Dunicin, Ch.,
(dissenting.) In Mr. Justice Story’s Treatise-on Equity Jurisdiction, (1 vol. p. 442,) it is said that the most important agencies falling under the cognizance of Courts of Equity, are those of attorneys, factors, bailiffs, consignees, receivers and stewards. It is further stated, that in most agencies of this sort, “it rarely happens that the prin- “ cipal is able, in cases of controversy, to ascertain his rights, “ or to ascertain the true state of the accounts, without resort- “ ing to a discovery from the agent;” and that, independent of the discovery, in most agencies of long continuance, “ the re*201medy of the principal would be utterly nugatory, or grossly defective.”

In a note to the same page it is stated, on authority, “ that,in general, a bill will not lie by an agent against his principal, for an account, unless some special ground is laid ; as incapacity to get proof except by discovery.” The case of stewards is adverted to, as an exception, because a discovery from his-principal is ordinarily necessary. “ The nature of this dealing is that money is-paid in confidence, without vouchers, embracing a great variety of accounts with the tenants; and nine times out of ten, it is impossible that justice can be done to the steward, without going into Equity for an account against his principal.” In order to obtain, I suppose, a disco-' very or admission of “the sums which had been paid to him in confidence without vouchers.” For sums paid to any other person, without voucher, might be proved in the ordinary way. Unless this be the ground of exception, every factor, attorney f or even agent for a single transaction, might-file his bill in this Court, as is done in this case, for a balance alleged to be due him by his principal. In Scott vs. Truman, (Willes, 405,) the Chief Justice had placed the jurisdiction of the Court of Equity,in case of a principal, against his factor, on the notion of a trust. But Mr. Justice Story remarks, that if the source ofjurisdiction in such cases, (a consignment to a factor for sale) were the mere notion of a virtual trust, Equity jurisdiction would cover every case of bailment. “But,” he adds, “it is the necessity of reaching the facts, by a discovery; and, having jurisdiction for such purpose, the Court,- to avoid multiplicity of suits, will proceed to administer the proper relief.” (2 Story. 445.)

In the case under consideration no-discovery is sought from the defendants. All the facts are within the knowledge of the' complainant; and, in respect to the sums disbursed by him, he charges expressly (In the language of the bill J that “ for every *202item usually vouched, he has shewn vouchers, although some items of small amounts paid out in petty sums, at different times, and in such a manner as to preclude him from taking receipts may be found without voucher to sustain them.” As to these petty sums, it is not perceived that the complainant would be entitled to any advantage before the commissioner, which he would not have with a jury. But, this difficulty of proof is not urged in the bill as a ground for the interference of this Court; nor could it, in my judgment, sustain the jurisdiction, unless discovery were sought.

But the objections to the complainant's account, are stated in» the bill, and substantially admitted by the answer, to wit: that he paid extravagantly for completing the boat, and that he chartered her for too small a sum on the expedition to Florida; these are the points on which the parties are at issue. For the examination and decision of this issue, it seems to me that the ordinary tribunal is the appropriate forum. I am of opinion that the plea to the jurisdiction should have been sustained.