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CHAP. I.

OF THE ACTION OF ACCOUNT.

1. In what Cases the Action of Account may be main

tained.

II. Of the Pleadings and Evidence.

III. Of the Judgment,

1. To Account.

2. Final.--Execution.

1. In what Cases an Action of Account may be main

tained.

A PREFERENCE, of late years, having been given to the mode of proceeding by bill in a court of equity, (where a discovery by the defendant's answer upon

oath
may

be obtained,) and having the account taken before a master in the Court of Chancery, or in the Court of Exchequer, the action of account has in a great measure fallen into disuse. It will not, therefore, be necessary to enter fully into the nature of this action, but briefly to apprise the reader in what cases it may be maintained, what pleas may be pleaded to it, and in what form judgment may be entered. To maintain an action of accounta, there must be either a privity in deed, by the consent of the party, (for an action of account does not lie against a disseisor or other wrongdoer,) or a privity in law, as in the case of a guardian, &c. By the common law, an action of account for the rents and profits may be maintained by the heir, after he has attained the age of 14 years, against the guardian in socage(1); so at the common law account will lie against a bai

& 1 Inst. 172. a.

b Lit. s. 123. 1 Inst. 89. a.

(1) The guardian in socage, like all other accountants, by the common law may claim an allowance of all his reasonable costs and expenses.

B

VOL. I.

liff(2) or receiver, and in favour of trade and commerce by one merchant against another. But this action did not lie for one joint-tenant, or tenant in common, against his companion, although he should have taken the whole profits to his own use, unless he had been appointed bailiff to render an accountd. But now, by stat. 4 Ann. c. 16. s. 27. an action of account may be maintained by one joint-tenant, or tenant in common, his executors or administrators, against the other, as bailiff, for receiving more than his share or proportion, and against the executors or administrators of such joint-tenant or tenant in common. One tenant in common brought an action of account against another, and charged him as bailiff and receiver. As to the account against him as bailiff, the defendant entered into the account; and as to the account against him as receiver, demurred especially, because the plaintiff did not state by whose hands the defendant received the money: the court held the exception good, notwithstanding 4 Ann. c. 16. s. 27. for that statute only empowered the plaintiff to charge the defendant as bailiff; but as the plaintiff had gone further, and charged the defendant as receiver, he ought to have shewn by whose hands he received the money, as was required by the common lawf. As the statute is a general statute it is not necessary for the plaintiff to set it forth, or to refer to it; but he must set forth so much as to bring his case within the statutes; and, therefore, in an action for account by one tenant in common against another, upon this statute the plaintiff must state in his declaration, that he and defendant were tenants in common, and that defendant has received more than his just share. It is not sufficient to charge defendant merely as bailiff(3).

cl Inst. 172. a.
d 1 Inst. 200. b.
e Walker v. Holiday, Comyn's Rep.272.

f 1 Inst. 172. a.
g Wheeler v. Horne, Willes, 208.

(2) By bailiff is understood a servant who has administration and charge of lands, goods, and chattels, to make the best benefit to the owner. Against such bailiff an action of account lies for the profits which he hath raised or made, or might by his industry or care have reasonably raised or made, his reasonable charges and expenses being deducted. An infant shall not be charged on such account. 1 Inst. 172. a. “Every person, who enters on the estate of an infant, enters as a guardian or bailiff for the infant.” Per Ld. Hardwicke, C. in Dormer v. Fortescue, 3 Atk. 130.

(3) An action of account against a tenant in common on this statute, differs from an action of account against a bailiff at common law; for a bailiff at common law was answerable, not only for his side are

Where there is a running account between a merchant and broker, the proper remedy for recovering the balance is by an action of account and not of assumpsith; but for the balance of an account assumpsit lies, though the items on each

numerous. Tomkins v. Willshear, 5 Taunt. 431. See also Arnold v. Webb, 5 Taunt. 432. n.

At the common law', executors in general could not have this action for an account to be made to the testator, because the account rested in privity ; but the stat. Westm. 2. 13 Edw. 1. stat. 1. c. 23. gave this action to executors, and (according to Sir Edward Coke, 1. Inst. 89. b. 2 Inst. 404.) the statute of 31 Edw. 3. stat. 1. c. 11. (4) to administrators. The stat. 25 Ed. 3. stat. 5. c. 5. has extended the same remedy to the executors of executors. At the common law, this action did not lie against the executors of the accountant (5); but by stat. 4 Ann. c. 16. s. 27. an action of account may be maintained against the executors or administrators of a guardian, bailiff, or receiver. This action does not lie against an infantk (6); nor by one

k 1 Inst. 88 b.

1 Inst. 172. a.

h Scott v. M'Intosh, 2 Campb. 238. i Lit. s. 125. 1 Inst. 89 b, 90 b.

2 Inst. 403.

actual receipts, but for what he might have made of the lands without his wilful default: but, by the words of this statute, a tenant in common, when sued as bailiff, is answerable only for so much as he has actually received more than his just share and proportion. Per Willes, C. J. delivering the opinion of the court in Wheeler v. Horne, Willes, 209, 210.

(4) This statute empowers the ordinary, in the case of intestacy, to depute the next and most lawful friends of the intestate to administer his goods; which deputies shall have an action to demand and recover, as executors, the debts due to the intestate. See a precedent of a declaration in account by an administrator.–Vidian's Entries, p. 75.

(5) These rules of the common law, viz. 1. That account did not lie by executors*; 2. That account could not be maintained against executors, had some exceptions. As to the first, an account might have been maintained at the common law by the executors of merchants; as to both, in the case of the king, the action layt. It should also be remarked, that though at the common law, executors in general were not compellable to account, yet if they consented to settle an account, they were liable to an action of debt for the balance.

(6) Hence an infant cannot be guardian in socage. 1 Inst. 88. b.

* Hargrave's Co. Lit. 90 b. n. (3). † F. N. B. 117. 11 Rep. 90. a.

$F. N. B. 267. Lord Hale's note.

executor against another', for the possession of the one is the possession of the other.

II. Of the Pleadings and Evidence.

The defendant may plead in bar to this action m, that he was never bailiff or receiver, or that he has fully accounted, or any matter which tends to shew that he was never accountable, or a release. When the plaintiff charges the defendant as receiver from such a time to such a time, the defendant must answer the whole time (7) precisely. By stat. 21 Jac. 1. c. 16. s. 3. actions of account, (other than such accounts as concern the trade of merchandize between merchant and merchant, their factors, or servants,) must be commenced and sued within six years next after the cause of action. If the defendant plead, that he was never receiver°, he cannot give in evidence a bailment to deliver to another person, and that he has delivered accordingly: for though this special matter prove that he is not accountable, yet as, upon the delivery, he was accountable conditionally, (viz. if he did not deliver over,) the evidence does not support the plea. So a release cannot be given in evidence under the plea, that the defendant was never receiverp. In account against the defendant9 as receiver by the hands of A. it is sufficient for the plaintiff to

1 F. N. B. 271. 4to. edit, note (f). m 1 R. A. 121. vet. Intr. 16. Rast

Entr. 17, 19, 21. n Southcot v. Rider, T. Raym. 57.

o 2 Roll. Abrid. 683. (F.) pl. 1.
p Willoughby v. Small, I Brownl. 24.
q Harrington v. Deane, Hob. 36.

(7) It is a general rule in pleading, that the plea must answer every material part of the declaration. If a plea begin with an answer to the whole, but in truth the matter pleaded be only an answer to part, the plea is bad, and the plaintiff may demur; but if the plea begin as an answer to part and is in truth an answer to part only, it is a discontinuance, of which the plaintiff may take advantage; the plaintiff, however, ought not to demur in this case, but to take his judgment for the part, unanswered by nil dicit; for if the plaintiff demurs, or pleads over, the whole action is discontinued. i Roll's Abrid. 487. pl. 10.—Weaks v. Peach, 1 Salk. 179. Market v. Johnson, 1 Salk. 180.–Vincent v. Beston, 1 Lord Raym. 716.Peers v. Henriques, 2 Lord Raym. 841,--Gilb. Hist. C. B. 155. prove that A. directed the defendant to borrow of another to pay the plaintiff; that the defendant borrowed accordingly, and that A. gave bond to the lender.

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1. THERE are two judgments in this action: the first judgment is, that the defendant do account', usually termed a judgment quod computet (8). This is in the nature of an award of the court, interlocutory only, and not definitives, and whereon a writ of error does not lie. It is, however, essentially necessary that this judgment should be enteredt; for where the defendant pleaded that he had fully accounted, and issue being joined thereon, the jury found for the plaintiff, and assessed damages and costs, and judgment was entered accordingly, and execution taken out; the court, on motion, set aside the judgment and execution, observing that the judgment was wrong, for it ought to have been only a judgment to account; and they compared the irregularity in this case to the irregularity of signing final judgment before interlocutory judgment.

After the judgment to account, the defendant usually offers to account, and thereupon the court assigns auditors to take and declare the account between the parties. The auditors assigned", are, in general, some of the officers(9) of the court, who may convene the parties before them, from day to day,

r Co. Ent. 46 b Rast. Ent. 17.
s Metcalf's case, 11 Rep 38. a.
t Hughes v. Burgess, Ca. Temp. Hard

394.

u Williams v. Lee, 1 Mod. 42. See the

form, 3 Wils. 89.

(8) The form of this judgment, in the case of Godfrey v. Saunders, 3 Wils. 88. was as follows:" therefore it is considered, that the defendant account with the plaintiff of the time aforesaid, in which he (defendant) and the said S. S. were the bailiffs of the plaintiff, and had the care and administration of the aforesaid goods and merchandises, &c. to be merchandized and made profit of for plaintiff ; and the defendant in mercy, &c. because he hath not before accounted, &c.

(9) In Godfrey v. Saunders, C. B. 3 Wils. 73. the three prothonotaries were assigned auditors.

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