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18

"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.' 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.10 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. "Pomeroy on Equity Jurisprudence, note to Sec. 1421.

SATISFACTION AND PERFORMANCE.

SECTION 63. SATISFACTION.

Satisfaction is the equitable doctrine by which the donation of a thing is taken as extinguishing some prior claim in favor of the donee. This doctrine will only apply when it is in accordance with the intention of the donor. The following are the principal applications of this doctrine.

(a) Satisfaction of debts by legacies. When a debtor leaves money by will to a creditor of his, this will ordinarily be presumed to be in satisfaction of the debt if the amount of the legacy is equal to or greater than the amount of the debt. If the amount of the legacy is less than the amount of the debt, it will be presumed to be a satisfaction pro tanto. This presumption may be rebutted by evidence showing that the testator intended the legatee to receive both the amount of the legacy and of the debt.' When a creditor leaves a legacy to his debtor, the one will be set-off against the other and it will not be presumed (in the absence of evidence to that effect) that the creditor intended the debtor to take the legacy and in addition to be free of the debt."

(b) Satisfaction of legacies by subsequent legacies. Two legacies of the same specific article can, of course, only transfer the article once. Legacies of different amounts by the same instruments, or of the

Strong vs. Williams, 12 Mass.,

389.

1

Sharp vs. Wightmans, 205 Pa.

St., 285; 54 Atl., 888.
Edwards vs. Rainier's Ex's., 17
Ohio St., 597.

same amount by different instruments, are considered as cumulative; but where there are two legacies of the same amount, given to the same party, by the same instrument, the second legacy is presumed to be in satisfaction of the first. Each of these presumptions may be rebutted by evidence of a contrary intention on the part of the testator.

(c) Satisfaction of legacies by portions and advancements. In a majority of the states it is held that when a father makes a will leaving a certain legacy to a child, and afterwards pays to the child a sum of money, the presumption is that such payment will be considered (in the absence of evidence of a contrary intention) as being in the nature of an advancement, and as working satisfaction pro tanto of the legacy to such child. This doctrine is mainly upheld on the ground of fairness to the other children of the testator.

(d) Satisfaction of portions by subsequent legacies. Where the parent of one of the parties to a marriage agrees to settle a certain amount of money, or property, upon the parties to said marriage, or either of them or their children, and afterwards makes such a provision by will, such legacy will be presumed to be in satisfaction of the promised portion or settlement.

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The doctrine of performance is an application of the equitable maxim that "Equity imputes an inten tion to fulfill an obligation." Where a person is under obligation to do a certain act, and does an act which may or may not have been intended as a fulfillment • De Witt vs. Yates, 10 Johns, 156.

Thompson vs. Betts, 74 Conn, 576.

thereof, or accomplishes the same result in a different manner than the manner specified, equity will consider the act done as a performance of the act which the party was under an obligation to do.

The two important classes of cases under this doctrine are as follows:

"Where a person covenants to purchase and settle, or to purchase and convey lands, and he afterwards purchases such lands, without expressing any purpose for which the purpose is made, and does not convey or settle them in pursuance of his covenant. 2. Where a person covenants to leave property by will, and he does not make the bequest, but on his death the covenantee receives the same kind of property by succession.” •

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