when sued as bailiff, is answerable only for so much as he has actually received more than his just share and proportion (o); and it is not a receipt of more than his just share or proportion, if he has merely had the sole enjoyment of the property, even though, by the employment of his own industry and capital, he makes a profit by the enjoyment and takes the whole of such profit (p). 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 assumpsit (q); but for the balance of an account assumpsit lies, though the items on each side are numerous (r). In certain cases, however, an action of account is preferable (s). At the common law (t), 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. West. 2, 13 Edw. I. stat. 1, c. 23, gave this action to executors, and (according to Sir Edward Coke, 1 Inst. 89, b; 2 Inst. 404) the 31 Edw. III. stat. 1, c. 11, to administrators. The 25 Edw. III. 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 (u); but by 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 infant (x); nor by one executor against another (y), for the possession of the one is the possession of the other. II. Of the Pleadings and Evidence. It is not necessary to state in the declaration, that a reasonable time elapsed between the request to account and the commencement of the action (2). The defendant may plead in bar (a), that he was never bailiff or receiver; or that he has fully accounted (b); or that he has accounted before auditors assigned by the plaintiff'; (0) Wheeler v. Horne, Willes, 209, 210. (p) Henderson v. Eason, 17 Q. B. 701. (q) Scott v. M'Intosh, 2 Campb. 238. (r) Tomkins v. Willshear, 5 Taunt. 431. See also Arnold v. Webb, 5 Taunt, 432, n. (s) Wells v. Rose, 7 Taunt. 402. (t) Lit. s. 125; 1 Inst. 89 b, 90 b; 2 Inst. 403. (u) These rules of the common law, viz. 1, That account did not lie by executors (Hargrave's Co. Lit. 90 b, n. (3) ), 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 lay (F. N. B. 117; 11 Rep. 90 a). 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 (F. N. B. 267, Lord Hale's note). (a) 1 Inst. 88 b; 1 Inst. 172 a; per Lord Hardwicke, C., in Dormer v. Fortescue, 3 Atk. 130. Hence an infant cannot be guardian in socage. 1 Inst. 88 b. (y) F. N. B. 271, 4to edit. note (ƒ). (z) Beer v. Beer, 12 C. B. 60; 21 L.J., C. P. 124. (a) 1 R. A. 121, vet. Intr. 16; Rast. Entr. 17, 19, 21. (b) Baxter v. Hozier, 5 B. N. C. 288. or that he has accounted before to the plaintiff himself (c); or any matter which tends to show that he was never accountable, e. g. to an action under the 4 Ann. c. 16, facts showing that he is not tenant in common with the plaintiff (d); or a release. He cannot pay money into court (e). The 70th section of the Common Law Procedure Act, 1852, which provides for payment into court in all actions (with certain exceptions), only applies, it seems, to cases where the money is paid in satisfaction of the cause of action (f). When the plaintiff charges the defendant as receiver from such a time to such a time (g), the defendant must answer the whole time precisely (h). Actions of account must be commenced and sued within six years next after the cause of action, 21 Jac. I. c. 16, s. 3; 19 & 20 Vict. c. 97, s. 9 (i). And one item of claim in an account having arisen within the six years will not suffice to take the residue out of the statute. 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 (j). So a release cannot be given in evidence under the plea, that the defendant was never receiver (k). In account against the defendant as receiver by the hands of A., it is sufficient for the plaintiff to prove that A. directed the defendant to borrow of another to pay the plaintiff : that the defendant borrowed accordingly, and that A. gave a bond to the lender (1). III. Of the Judgment. 1. To Account. 2. Final.-Execution. 1. There are two judgments in this action :-the first judgment is, that the defendant do account (m), usually termed a judgment (c) F. N. B. 117, D. note (d). (d) Ricketts v. Loftus, 14 Q. B. 482; Gorely v. Gorely, 1 H. & N. 144. (e) Anon., Bull. N. P. 128. (f) Bishop of London v. M'Niel, 23 L. J., Exch. 111; 9 Exch. 490, S. C. (g) Southcot v. Rider, T. Raym. 57. (h) 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; Weeks v. Peach, 1 Salk. 179; Down v. Hatcher, 10 A. & E. 121 (unless the point is doubtful, per Patteson, J., in Worley v. Harrison, 3 A. & E. 675; in which case an application to amend should be made under the 52nd section of the Common Law Procedure Act, 1852); but if the plea begin as an answer to part, and is in truth an answer to part only, the plaintiff ought not to demur, but to take his judgment for the part unanswered by nil dicit; 1 Saund. 28, n. 3; Henry v. Earl, 8 M. & W. 228; Vincent v. Beston, Lord Raym. 716; for if the plaintiff demurs, or pleads over, the whole action is discontinued. 1 Roll. Abrid. 487, pl. 10; Market v. Johnson, 1 Salk. 180; Peers v. Henriques, 2 Lord Raym. 841; Gilb. Hist. C. B. 155, 158. (i) Cottam v. Partridge, 4 M. & Gr. 271; post, tit. Assumpsit. (j) 2 Roll. Abrid. 683 (F.), pl. 1. quod computet (n). This is in the nature of an award of the court, interlocutory only, and not definitive (o), and whereon error does not lie. It is, however, essentially necessary that this judgment should be entered (p); 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 (q) are, in general, some of the officers of the court, who may convene the parties before them from day to day, until the account is determined (r). If the auditors find the parties remiss and negligent, they must certify to the court that they will not account. By 4 Ann. c. 16, s. 27, the auditors are empowered to administer an oath, and examine the parties touching the matters in question, and for the trouble in auditing and taking such account shall have such allowance as the court shall judge reasonable, to be paid by the party on whose side the balance of account shall be. Special bail is not to be found until after judgment to account (s). If the defendant (t), after the judgment to account, does not personally appear in court to give bail to account, there must issue a capias ad computandum for the purpose of bringing him into court (u). With respect to pleading before the auditors, the following rules are to be observed:-1. In order to avoid trouble and charge to the parties (x), what might have been pleaded in bar to the action shall not be allowed as a discharge before the auditors. 2. If the party is once chargeable and accountable (y), he cannot plead any matter in bar, except a release, or plene com () 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 merchandizes, &c. to be merchandized and made profit of for plaintiff; and the defendant in mercy, &c., because he hath not before accounted," &c. (0) Metcalf's case, 11 Rep. 38 a. 394. (4) Williams v. Lee, 1 Mod. 42. See the form, 3 Wils. 89. (r) In Godfrey v. Saunders, C. B., 3 Wils. 73, the three prothonotaries were assigned auditors. See Archer v. Pritchard, 3 D. & R. 596; Beer v. Beer, 12 C. B. 82. (s) Reeves v. Gibson, 1 Lev. 300. It was said, by all the prothonotaries in the Court of Common Pleas, that the defendant upon the first writ should not be held to special bail, yet, in special cases, by the discretion of the court, he shall find bail. Noy, 28. (t) Chester v. Hunt, C. B. M. 13 Geo. II. (u) Pryor v. Pettingell, 2 D. N. S. 755. (x) Taylor v. Page, Cro. Car. 116; 3 Wils. 113, S. P. (y) 3 Wils. 113, 114. putavit; but must plead before the auditors. The exceptions proceed on this ground, that a release, and the having fully accounted, are total extinctions of the right of action (a), of which the court is to judge; and even in these cases they must be pleaded specially, and cannot be given in evidence on ne unques receivor. 3. Nothing can be pleaded before the auditors (b) contrary to what has been previously pleaded and found by verdict, because the consequences would be either two contradictory verdicts, which would perplex the court, or two similar verdicts, which would be nugatory. 4. If the defendant plead before the auditors (c) any matter in discharge which is denied by the plaintiff, so that the parties are at issue, the auditors must certify the record to the court, who will make such order for the summoning of a jury to try it, under the Common Law Procedure Acts of 1852 and 1854, as they think fit. See sects. 104 and 107 of the former act, and sect. 59 of the latter and 46th Pr. R., Hil. Term, 1853. If on the trial the plaintiff make default, he shall be nonsuited; but, notwithstanding the nonsuit, he may, it seems, revive the first judgment in the manner pointed out by the 15 & 16 Vict. c. 76, s. 129, et seq. 2. The final judgment is (d), that the plaintiff do recover against the defendant so much as he, the defendant, is found in arrear (e). Error lies upon this last judgment only; but, although it may be found erroneous, and reversed, the first judgment shall stand in force, for the two judgments are distinct and perfect (ƒ). Execution. It is not unworthy of remark, that this action is the first of a civil nature in which process of execution against the person was given. This process is given by stat. Westm. 3, 13 Ed. I. c. 11; but, under this act, the guardian in socage cannot be committed to prison, for he is in loco parentis, and the words of the statute are de servientibus balivis, &c. (a) 1 Brownl. 24, 25. (b) 3 Wils. 114. (c) Bull. N. P. 128. (d) Metcalf's case, 11 Rep. 40 a. (e) The form of this judgment for the plaintiff upon demurrer to plea before the auditors, in Godfrey v. Saunders, 3 Wils. 94, was as follows:-"Therefore it is considered, that the plaintiff do recover against the defendant the aforesaid 12,000l. (the sum laid in the declaration), for the value of the goods and merchandizes aforesaid, and also 2781. 7s. 9d. for his damages, as well by reason of the interpleading aforesaid, as for his costs and charges by the plaintiff in and about his suit in that behalf expended, to the said plaintiff by the court here adjudged with his assent; and that the said defendant be in mercy," &c. (f) The reader who is desirous of further information concerning the nature of this action, is referred to the record and proceedings in the case of Godfrey v. Saunders, 3 Wils. 73. II. Of the Evidence, and herein of the Statutes relating to Marriage, Marriages Abroad Proof of Adultery III. Of the Damages, Costs I. Of the Remedy for this Injury, and in what Cases an Action may be maintained. In ancient times adultery was inquirable in tourns and leets (a), and punishable by fine and imprisonment; but at the present day the courts do not take any cognizance of it as a public wrong. Several attempts, indeed, have been made by the legislature to bring this offence within the pale of criminal jurisdiction, but they have, for the most part, been wholly ineffectual (b). During the time of the Commonwealth, in the year 1650, adultery was made a capital crime (c): but at the Restoration it was not thought proper to renew a law of such unfashionable rigour; adultery, therefore, at the present day, as far as respects the temporal courts, is considered merely as a civil injury; and until the late statute, 20 & 21 Vict. c. 85, came into operation, the only remedy which the law afforded was an action, whereby the husband recovered against the adulterer a compensation in damages for the loss of the society, comfort and assistance of his wife in consequence of the adultery. By sect. 59 of the above statute this action was abolished; but inasmuch as the principles of law and rules of practice which governed it apply to the petition for damages, (a) 3 Inst. 206. (b) In the year 1604 (2 Jas. I.) a bill was brought into parliament "For the better Repressing the detestable Crime of Adultery." This bill was committed, but when the report was made by the committee the Earl of Hertford said, that they found the bill rather concerned some particular persons than the public good, See whereupon the bill was dropped. (c) The provisions of this act will be found in Scobell's Acts, part 2, p. 121, fo. ed. |