One of the earliest of all common law actions ex contractu was that of account. The common law action, however, was very narrow in its application, with the result that equity soon began to enter this field. The jurisdiction of equity in accounting, however, has always been limited to those cases where there is no complete and adequate remedy at law.

An action for accounting will lie at equity in the following classes of cases:

(a) In the case of mutual accounts between the parties. There must be true mutuality of accounts; that is, receipts and expenditures on both sides, not merely charges on one side and set-offs on the other.14 Mutual accounts are thus discussed by the court in the case of Garner vs. Reis:15

'The case disclosed by the pleadings is one of mutual accounts, arising out of the dealings of the parties plaintiff and defendant with each other, under a contract between them, by which they engaged and became interested in a common business enterprise, which was undertaken and carried on in pursuance of its provisions. The accounts comprise various items on each side, all of which refer to and form parts of the one single transaction, which originated in the contract. No separate claim or suit can be maintained upon any one of such items disconnected with the rest, and hence they cannot, strictly speaking, he made mere matters of set-off, one against the other, as would be the case with independent cross demands or causes of action, having their origin in separate and distinct contracts or independent stipulations of the same contract. Being thus connected together as separate parts of one continuous transaction, the only right either party has in respect thereto, as against the other, is that of having the accounts fairly and fully adjusted and settled according to the provisions found due upon such final accounting and settlement. The subject matter of the action and controversy, therefore, is one of equitable cognizance and jurisdiction, and neither party can claim, in respect thereto, the right of a trial by jury, under that provision of the constitution which preserves such right in all cases at law as it existed when that instrument was adopted."

14 Dinwiddie vs. Barley, 6 Ves., 136; Haywood vs. Hutchins, 65 N. C., 574.

15 25 Minn., 475.

(b) Where the accounts although not mutual are very complex.16 The mere fact that the items in the account are very numerous will not be sufficient to give equity jurisdiction.17

(c) Where a fiduciary relation exists between the parties, and the defendant owes the duty of rendering an account to the complainant.

16 Taff Vale Ry. vs. Nixon, 1 H. L. Cas., 110, where the rule was laid down that in order to give jurisdiction solely on account of the complexity of the accounts it is necessary that the account should be so complicated that a court of law would be incompetent to examine it. 17 Barry vs. Stevens, 31 Beav., 258; 3 Keener's Cases 910.

'The principal difficulty is as to when equity will take jurisdiction of an accounting between principal and agent. The mere relation of principal and agent, without more - the relation not being really fiduciary in its nature, and no obstacle intervening to a recovery at law - is insufficient to enable a principal to maintain the action against his agent.18 But where the relation is such that a confidence is reposed by the principal in his agent, and the matters for which an accounting is sought are peculiarly within the knowledge of the latter, equity will assume jurisdiction.19 While the rules are thus settled in favor of a principal, it does not follow that the reverse is true, and that an agent may come into equity for an accounting against his principal, since generally there is no trust or confidence reposed in the latter, and no duty on his part to account."20 21

(d) Where the facts relative to the transaction are peculiarly within the knowledge of the defendant. This class is very closely connected with the preceding one.

(e) Where discovery is sought. Here the jurisdiction is really obtained by the necessity for the discovery.

18 King vs. Rossett, 2 Young & J.,

33. 19 Marvin vs. Brooks, 94 N. J., 71.

20 Padwick vs. Stanley, 9 Hare, 627.

21 Pomeroy on Equity Jurisprudence, note to Sec. 1421.