Page:Harvard Law Review Volume 2.djvu/269

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is obvious that the only adequate remedy is specific performance, or at least specific reparation. An action on the case to recover damages for a breach of the obligation, even if such an action would lie, would be clearly inadequate, as it would involve the necessity of investigating all the items of the account for the pur- pose of ascertaining the amount of the damages, and that a jury is not competent to do. In truth, however, such an action will not lie.^ If, indeed, there be an actual promise to account, either express or implied in fact, an action will lie for the breach of that promise ; but as such a promise is entirely col- lateral to the obligation to account, and as therefore a recovery on the promise would be no bar to an action on the obligation, it would seem that nominal damages only could be recovered in an action on the promise, or at most only such special damages as the plaintiff had suffered by the breach of the promise.^ Besides, the first instance in which an action on such a promise was sus- tained was as late as the time of Lord Holt,^ while the obligation to account has existed and been recognized from early times.

Accordingly, the common law provided an action whose sole object was the enforcement of obligations to account, namely, the action of account ; and the relief afforded in that action consisted in compelling the defendant to account with the plaintiff. It is true that this is a kind of relief for which the machinery and the methods of the common-law courts are very ill fitted, and which, at the present day, they never attempt to give ; but they did attempt it in early times in the instance of the action of account, there being then no courts of equity. The action, unlike ordinary actions at law, consisted of two stages. The object of the first stage was to ascertain and decide whether or not the defendant was bound to account with the plaintiff ; and, accordingly, to that point, the pleadings were directed. The declaration charged the defendant with being the plaintiff's guardian, bailiff, or receiver. The defendant might either deny the charge (1. ^., deny that he had ever been such guardian, bailiff, or receiver, and hence that he had ever incurred an obligation to account with the plaintiff), or he might plead an affirmative defence, namely, that the obliga- tion which confessedly once existed had ceased to exist, e,g,y that

^Spnrraway v, Rogers, 12 Mod. 517. « Wilkyns v. Wilkyns, Carlh. 89. • Wilkyns v, Wilkyns, supra.