Burton W. Bellamy, Appellant, vs. Alexander B. Hawkins, Appellee, 16 Fla. 733

The Chief-Justice delivered the opinion of the court. This cause was heard by the Chancellor upon the pleadings and proofs, and the court found that the complainant is not entitled to recover anything of the defendant; that ■he'has received from the estate of William Bailey, the testator named in this cause, at least full compensation for all services rendered by him to the said estate, as shown by the ■evidence, and thereupon decreed that the complainant’s bill be dismissed with costs.

We have examined the record and considered the authorities refered to, and must express our regret that the parties •have been at such labor and ‘expense as they have subjected •themselves to in this case without a practical result. There is nothing in the case to show that the-complainant may not have a plain and adequate remedy at law to recover the demands set up in the bill, by an action for money had and received, in which the respective causes of action and defence may be submitted to a jury, winch is the proper tribunal to determine them.

The claim is, that Hawkins, one of the executors, has received out of the estate of Bailey, deceased, certain sums of money, which was ascertained, adjudged and allowed by the Probate Court as commissions and compensation to which all the executors were entitled by the statute, and that complainant, being one of the executors, is entitled to a certain easily-ascertained share.

There is no such complication of accounts or. concealment of facts by the defendant possible, according to the case made, whieh makes a discovery necessary, because all the facts are contained in the record and proceedings of the Probate Court! Courts of equity will entertain jurisdiction in matters of account when there are mutual accounts, and also when the accounts to be examined are on one side only, and a discovery is wanted in aid of the account and is obtained ; but in such a case, if no discovery is asked or required by the frame of the bill, the jurisdiction is not maintainable. (1 Story’s Eq.

Jur., §458 and notes.) It is not every account which will entitle a court of equity to interfere. It must be such an account as cannot be taken justly and fairly in a court of law. Ib.; see also Story’s Eq. PL, §§473-479, and authorities ; 1 Daniel’s'Ch. Pl. & Pr., 3 Am. Ed., 575, n. 1. Ogle vs. Haddock’s adm’r, 1 Vesey, 162, was a bill for an account and division of prize money.

The Lord Chancellor says, “ There is no ground to come here for an account, the sum being.certain, and, therefore, no necessity to-decree for the plaintiff if his right was stronger being a mere legal right which should be recovered at law.” In Phillips vs.

Phillips, 9 Hare, 471, the Vice-Chancellor says : “ I take the rule to be that a bill of this nature will only lie where it relates to that which is the subject of a mutual account, and I understand a mutual account to mean? not merely where one of two parties has received money and paid it on account of the other, but where each of two persons had received money and paid it on the other’s account. * * Where -one party has merely received and paid moneys on account of the other, it is a simple case. * ' * The question is only as to the receipts on one side and the payments on the other, and it is a mere question of set-off; but it is otherwise where each party has received and paid and in Porter vs.

Spencer, 2 Johns. Ch., 169, it is held that to sustain a bill for an account there must be mutual demands, and not merely payments by way of set-off; there must be a series of transactions on one side and payments on the other. Also in Pearl vs. The Corp. of Nashville, 10 Yerg., 179, it is said that account is a head of equity jurisdiction ; but it is so only in cases where there are mutual accounts, and not where the items are all on one side. See also Foley vs.

Hill, 1 Phillips, 407 : “ A party has no right to come here upon a simple transaction of this kind, when justice may be administered in a more simple way and at less expense in a court of law.” In that case the parties were before the court upon bill, answer and proof, and the bill was dismissed upon the ground stated. But it is unnecessary to cite further authorities; the question is entirely settled by the courts in England and in this country, and it is only necessary to refer-further to sections 457 to 459 of the late edition of Story’s Eq.' Jur., and to Daniel’s Ch. PL & Pr., (3 Am. Ed.,) 575 and notes.

The decree (without reference to the conclusions of the court upon the facts) dismissing the complainant’s bill is affirmed, without prejudice to his right of action at law.