m1LLma. v. KENT. `113
Mrmma and others v. Kaur and others.
(Oncuit Uourt, S. D. New York. April 10, 1883.,)
EQUITY—REI,IEF—REMEDY xr LAW.
Where moneys were deposited with defendants, to be held subject to the or- ·
der of the complainants, and were by the defendants misappropriated and used
for their own purposes, there is an adequate remedy at law, and a bill for re-
lief in equity will not lie without showing that the moneys were misappropri-
ated in violation of some active trust between the parties, involving confidence
on the one side and discretion on the other, or that there were mutual accounts
between the parties, or an account on one side of a nature torjustify a bill of
discovery.
In Equity. N A
Henry J. Bennett, for complainants.
L. A. Gould, for defendants. _ _ _
Winton, J. This bill is demurred to for want of equity. ._The
bill alleges that the defendants withhold five distinct sums of money
deposited with them as commission merchants by the complainants,
and which defendants were to hold subject to the order of the com-
plainants, and that "defendants have used said moneys for their own
purposes, and have proiited thereby." There is no prayer for dis-
covery. If the moneys were misappropriated in violation of some “
active trust between the parties, involving confidence on thelone side 4
and discretion on the other, or if there were mutual accounts between
the parties, or even an account on one side of a nature to justify a
bill of discovery, there might be a case of equitable cognizance. Upon
~ the facts alleged, the complainants have a plain, adequate, and com-
plete remedy at law. , V i B 4
There are pressions of opinion in some of the more recent Eng`-
lish cases to the eiiect that a principal may always resort to equity to
compel an accounting by his agent; but in all the cases wherethe
bill was sustained, the accounts were complicated and a discovery
was essential. Mackenzie v. Johnston, 4 Mad. 373; Phillips v. Phillips,
9 Hare, 471; Shepard v. Brown, 9 Jur. (N. S.) 195; Hemlngs v,
Pugh, Id; 1124; Makepiece v. Rogers, 11 Jur. (N. S.) 314. The cases
are not authority for relaxing the rule that at bill, in general, will not
lie unless some special ground is laid; as the inability to’·get·proof, e
unless by discovery, (Dlnwiclclie v. Bailey, 6 Ves. 136; Moses v.
Lewis, 12 Price, 388;) or where, independently of discovery, intricate
and perplexing accounts exist which cannot be convenientlyinvesti-
gated at law. Story, Eq. Jur. § 462. i ( i V ° `
“ The demurrer is sustained. ( V V -· `   ·V *   l   V V `
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