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the parties, the cause for which it will lie, the declaration, the pleas and issue, the evidence, the judgment quod computet, the proceedings before auditors, the final judgment, and the proceedings in error.

3406. It is a general rule that parties who have an interest in the case must all join and be joined, because it being founded on contract no recovery can be had by any person except those who have the right, nor against any one who, though liable, is so only with other persons. But it is not always easy to say whether all the parties who have a right have such an interest as will entitle them to bring the action; as, where two persons are tenants in common of goods and one bails them to a stranger to render him an account, he alone shall have the action. On the contrary, if both the tenants in common bail the goods, they must join in the action.

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So, on the other hand, all persons who are jointly liable must be made defendants, but care must be taken not to include as joint defendants persons who are not jointly responsible; for example, where there are three or more partners and one sues two of them in account where each is responsible only for himself, the plaintiff must fail, because if he were to succeed he might make one of the defendants, who had received only his share of the partnership fund, liable for the acts of his co-defendant unless there was a joint liability."

At common law account could be maintained only against a guardian in socage, a bailiff or receiver, or by one in favor of trade and commerce, naming himself merchant, against another naming him merchant, and for the executors of a merchant; the reason assigned for this is that there was a privity, and the law presumed them conusant of each other's disbursements, receipts, and acquittances.5

By statute, an action of account is given to executors, to executors of executors, to administrators, and by another statute actions may be brought against the executors and administrators of every guardian, bailiff or receiver, and by one joint tenant, tenant in common, his executors and administrators, against the other as bailiff for receiving more than his share, and against his executors and administrators.10

Before the passage of this last statute, if one joint tenant, or tenant in common, received all the profits, the other could not maintain his action unless he actually had appointed him his bailiff or receiver."

It has been held that joint partners in mercantile adventures may have account render against each other; 12 but where two or more purchased a tract of land together under an agreement that it should be resold and the profit divided, even if the transaction had been a technical partnership, which is doubtful, yet it was ruled that as there was but one item to settle between the parties,

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283.

Brooke, Abr. Accompt, pl. 32; Viner, Abr. Account, E, pl. 14.

Whelen v. Watmough, 15 Serg. & R. Penn. 153; McFadden v. Sallada, 6 Penn. St.

5 Bacon, Abr. Accompt, A. against a guardian, as such, Md. 388.

613 Edw. I, c. 23.

25 Edw. III, st. 5, c. 5.

8 31 Edw. III, c. 11.

9 4 Anne, c. 16, s. 27.

Account render is the only action at law that can be brought except an action on his bond. Green v. Johnson, 3 Gill & J.

10 Irvine v. Hamlin, 10 Serg. & R. Penn. 220.

11 Coke, Litt. 172, a, 186, a, and 200, b; McAdam v. Orr, 4 Watts & S. Penn. 550. 12 Griffith v. Willing, 3 Binn. Penn. 317; Irvine v. Hanlin, 10 Serg. & R. Penn. 220; Whelen v. Watmough, 15 Serg. & R. Penn. 153. It cannot be brought by one partner against all the others where the firm consists of more than two, as there is no joint liability of the other partners to account to one. Appleby v. Brown, 24 N. Y. 143; Duryea v. Whitcomb, 31 Vt. 395; Portsmouth v. Donaldson, 32 Penn. St. 202.

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assumpsit might be maintained against him who had received the proceeds of the re-sale; and it was not necessary to bring an action of account render.13 Account render lies by the cestui que trust against his trustee to enforce the payment of the trust fund; by a landlord against his tenant, where, by the terms of the lease, the latter was to deliver an account to the former, for a proportion of the profits; for example, for the tolls of a mill; by a client against his attorney at law, to obtain an account of moneys received by the defendant.16

A bailiff is one appointed by the owner of lands and other property to collect the rents and profits of the same, and to make the best of them by his management for the benefit of the owner; he is entitled to a reasonable compensation for his trouble and care, and may be made accountable by an action of account for the profits which he has made, or could have made by proper care. A receiver is one who receives money on account of another, for which he has agreed either expressly or by implication to account to him; at common law the receiver is allowed only such charges and expenses as are agreed upon by the parties." The distinction between bailiffs and receivers, however proper in other cases, does not apply to partners in trade, for one partner, though charged as receiver, is entitled to every just allowance against the other.18

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This action cannot be maintained against a minor as bailiff or receiver, because he is not able to make a binding contract; nor by an apprentice, as such, for, when acting in that capacity in the ordinary business of his master, he is only performing the business of his master as the master would have done; but though he is not chargeable for the ordinary receipts of his master's trade, yet if he receive money not in such ordinary trade, he is liable as any other person; in that case, however, he must be charged as receiver or bailiff 20 It does not lie against a disseisor or wrong-doer, because there is no contract, express or implied, between such a person and the plaintiff; nor by one executor against the other, because the possession by one is possession by the other.

The question whether the parties are sufficient must be settled before the reference, and the objection that the defendant is not the bailiff of the plaintiff cannot be raised before the auditors.21

3407. This action can be maintained only when there has been an express or implied contract between the parties on which the action is founded, and the amount due is uncertain and unliquidated. It is not requisite that the contract should be express; an implied contract is sufficient; and where the defendant has been guilty of a tort, when he has received the property or money of the plaintiff, he is liable to this action, if the plaintiff waives the tort.23

Whenever the account between the parties has been stated, and a balance found to be due, assumpsit is the proper remedy; but when the accountant was

13 Brubacker v. Robinson, 3 Penn. 295.

14 Bredin v. Deven, 2 Watts, Penn. 95; Dennison v. Goehring, 7 Penn. St. 175.

15

Long v. Fitzsimmons, 1 Watts & S. Penn. 530.

16 Bredin v. Kingland, 4 Watts, Penn. 420.

171 Dane, Abr. c. 8, % 4.

18 James v. Browne, 1 Dall. 340.

19 Earl of Devonshire's Case, 11 Coke, 89, b. See Evans v. Birch, 3 Campb. 10.

20 2 Inst. 379, 380. The action lies against a woman as receiver, though she was a feme covert at the time of receiving the fund. Green v. Johnson, 3 Gill & J. Md. 388; Smith v. Woods, 3 Vt. 485.

21 Day v. Lockwood, 24 Conn. 185; Baxter v. Thompson, 26 Vt. 559.

22

King of France v. Morris, cited 3 Yeates, Penn. 251. In Connecticut this action lies whenever a person has received money for the use of another; especially if it be received by a third, to be delivered over. Mumford v. Avery, Kirb. Conn. 163.

23 Dane, Abr. c. 8, a. 2, ? 10; Sherman v. Ballou, 8 Cow. N. Y. 304; Stanard v. Whittlesey, 9 Conn. 556.

a bailiff, account is a concurrent remedy with assumpsit where there has been an express promise.24

The plaintiff may in some cases have covenant or account at his election; as, where one acknowledged by deed that he had received one thousand dollars from another, to be adventured in trade in the West Indies, and promised to account; the remedy for the non-compliance of this agreement may be an action of covenant on the deed, or an action of account, at the election of the creditor.25 Account render is not a proper remedy to recover a thing certain; as, if Peter deliver to Paul one hundred dollars to trade with, he shall not have an action of account for the one hundred dollars, but simply for the profits made out of it; 26 nor to recover rent reserved on a lease; nor mesne profits; 28 nor where one takes security, on the delivery of goods or money, for their return, for in such case the receiver cannot be said to be possessed of the goods or money, to render an account of the profits; besides, when a person makes such a special contract, his remedy is restricted to it.29

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3408. Having seen who may bring an action of account render, and against whom it may be maintained, and for what causes it will lie, let us suppose the parties to be in court; the next step to be taken is the filing of a declaration by the plaintiff.30

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3409. The declaration is an application of the writ with the addition of a formal commencement and conclusion, and showing, when against a receiver, by whose hands the defendant received the money; for it is but reasonable that he should have this information, in order that he may meet the charge. Though this rule may sometimes prove inconvenient to the plaintiff, because he may not know from whom the defendant received the money, yet the evil would be much greater to leave the defendant ignorant of what he was called upon to answer. To obviate the difficulty is simply to charge the defendant as bailiff where the money he has received was from goods intrusted to him. A declaration, charging the defendant as bailiff and receiver, is proper when the defendant is such in law and in fact, and has the property without any interest in it himself. But the rule is different in actions of account render between tenants in common under the statutes of Anne, as well as in actions between partners; in such cases it is necessary to aver that the money was received for the common benefit of the plaintiff and defendant, and that the defendant had received more than his share of the profits.3

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3410. It is not necessary to be particular as to time; when the declaration charged that the defendant was receiver between 1658 and 1673, without any certain time, it was held sufficient; and a blank in the declaration for the time during which the defendant acted as bailiff is cured by a verdict. It is not

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24

Bacon, Abr. Accompt, D; Wetmore v. Woodbridge, Kirb. Conn. 164.

25 Bacon, Abr. Accompt, D.

26 Brooke, Abr. Accompt, 35. But see Mumford v. Avery, Kirb. Conn. 163.

"Rolle, Abr. 116.

28 Harker v. Whitaker, 5 Watts, Penn. 474.

29 Dane, Abr. c. 8, a. 2, ? 6.

30 For forms of declarations in account render, see Read, Am. Pleader's Assistant, 1 to 6; Impey, Pract. 153; 1 Wentworth, Pl.; 1 Mallory, Mod. Entr. Account.

si Dane, Abr. c. 8, a. 1, 4; Walker v. Holyday, 1 Com. 272; see Moore v. Wilson, 2 N. Chipm. Vt. 91; May v. Williams, 3 Vt. 239.

32 McFadden v. Sallada, 6 Penn. St. 283; see James v. Browne, 1 Dall. 339; Jordan v. Wilkins, 2 Wash. C. C. 482; Coke, Litt. 172, a; Wells v. Some, Croke, Car. 240; Comyn, Dig. Accompt, E, 2.

33 Sturton v. Richardson, 13 Mees. & W. Exch. 17; Irvine v. Hamlin, 10 Serg. & R. Penn. 221.

"See Wright v. Guy, 10 Serg. & R. Penn. 227.

necessary that the quantum of money should be accurately stated; the object of the action is to ascertain it.

3411. The declaration should lay the damages as in other cases. But the rule, that the plaintiff shall not recover damages for more than he has declared for, is not applicable to account render; the plaintiff may, therefore, have a judgment for the arrearages for a greater amount than the damages laid in his declaration; and when the plaintiff lays in his declaration the value of the chattels, and also damages, he obtains judgment, when entitled to it, for the value, and also for damages, distinguishing each.

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3412. In this action there is no general issue. The defendant may plead that he never was bailiff or guardian, or receiver in fact,36 but when sued as tenant in common, under the statute of Anne, if the declaration be properly framed, a plea that the defendant is not bailiff, nor receiver, would be insufficient; in such case, if the defendant means to deny the plaintiff's claim, he should traverse the tenancy in common. The defendant may also plead that he has fully accounted, either to the plaintiff or before auditors; or a release; arbitrament; bond given in satisfaction; or that the money was delivered to him for a specific purpose, which has been accomplished. But other matters which admit that the defendant was once liable, and might be made accountable, cannot in general be pleaded in bar to the action, but must be pleaded before the auditors; to this rule, however, there are exceptions, for when the defendant admits he was once accountable he may still plead a release, plene computavit, and the statute of limitations.

It is said that the defendant is not bound to plead at all in this action; he may admit admit upon record that he is willing to account, and, instead of a plea, he may come into court and say to the judges, "I am willing to account with the plaintiff, and pray that auditors may be assigned to take an account between me and the plaintiff;" and such accounting, without resistance to the plaintiff's claim by pleading, will save the defendant from being mulcted in damages, for which he would have been liable if he had so unjustly resisted the plaintiff's claim.39

When a plea has been pleaded, and the issue is joined on this or any subsequent pleadings to which the parties may conduct the cause, the simple question to be decided is, whether the defendant ought to account or not. The cause is then placed on the trial list, and in due time comes to be tried by a jury.

3413. It is a general rule that the evidence must, in every case, support the plaintiff's allegations to entitle him to recover, for when the plaintiff makes a material allegation, he is required to support it by proof. In this action he must give evidence of privity, either of contract, express or implied, or by law. When the defendant is charged as guardian, bailiff, or receiver, or tenant in common, or joint tenant, or partner, it must be proved that he acted in the specific character charged, for if it be necessary to charge him in such character, it is also required to prove that he acted as such. We have seen that the measure of the liability of defendants is not the same, tenants in common and joint tenants being answerable for what they have actually received, without deducting costs and expenses for their trouble, and receivers being charged in

35 Gratz v. Phillips, 5 Binn. Penn. 564.

36 The usual form is ne unques bailiff, etc. This may be pleaded together with plene computavit, and in this case the latter plea does not admit the liability of the defendant to account. Whelen v. Watmough, 15 Serg. & R. Penn. 158.

37 Wheeler v. Horne, Willes, 208.

38 Bacon, Abr. Accompt, E; Comyn, Dig. Accompt, E, 4, 5, 6; Godfrey v. Saunders, 3 Wils. 73.

39 Gratz v. Phillips, 5 Binn. Penn. 568.

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the same manner, but allowed costs and expenses in special cases, in favor of trade; and guardians and bailiffs are generally held to account for what they might, with proper diligence, have received, deducting reasonable costs and expenses."

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The property or right in the money demanded, or goods bailed, must be precisely stated, and proved to be in the plaintiff, as laid, it being a material allegation; if, therefore, the declaration claims as for money of the plaintiff, and the evidence is of money belonging to the plaintiff and another, as partners, the allegation in the declaration is not supported.12

Where there are several defendants, they must be proved to be jointly and not severally liable, else one might be made answerable for the default of the other.43

As a special demand is not required to be made before action brought, it is not necessary to aver it in the declaration, nor to prove it on the trial."

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Under the plea of plene computavit the defendant must show that he has accounted with the plaintiff, and that an ascertained balance has been agreed upon. But to this there is an exception in those cases where the law presumes that there has been an account; as, where the demand is against a servant for the proceeds of daily small sales, of which it is not the course to take written vouchers; in this case it will be presumed that the defendant has accounted; but this presumption may be rebutted by the plaintiff proving that this course of dealing has not been adhered to, and that the defendant has not accounted. 3414. When the jury find against the defendant, a judgment is rendered upon this verdict that the defendant do account, quod computet." This is but an interlocutory judgment, and its only effect is to compel the defendant to account before auditors, to be appointed by the court. It does not conclude the defendant as to the dates, or sums mentioned in the declaration; it is the duty of the auditor to make proper charges, and to allow proper credits, without regard to the verdict. A writ of error does not lie upon this judgment.49

If the jury return a verdict for the defendant, the judgment will of course be given for him, unless for some legal cause the verdict be set aside. In this case when the defendant has pleaded in bar, and the bar is adjudged good, the plaintiff may have a writ of error; for this judgment is final till reversed.50

3415. As to the proceedings before the auditors, let us consider the appearance of the parties, the hearing before auditors, the report of the auditors, and the power of the court over auditors.

3416. When the parties appear before the auditors, the case goes immediately to a hearing. Should the defendant neglect to appear before the auditors upon proper notice, the course is to obtain a certificate from them stating such neglect or refusal, and provided with this the plaintiff may apply to the court

40 This, as before observed, does not apply to the case of partners in trade. James v. Browne, 1 Dall. 340.

41 Jourdan v. Wilkins, 2 Wash. C. C. 482; Irvine v. Hamlin, 10 Serg. & R. Penn. 221; Griffith v. Willing, 3 Binn. Penn. 317; Sargent v. Parsons, 12 Mass. 149.

42 Jourdan v. Wilkins, 2 Wash. C. C. 482.

43 Whelen v. Watmough, 15 Serg. & R. Penn. 158.

Sturges v. Bush, 6 Day, Conn. 452.

45 Baxter v. Hosier, 5 Bingh. N. c. 288.

46 Evans v. Birch, 3 Campb. 10.

47 See the form of this judgment in Godfrey v. Saunders, 3 Wils. 88.

48 Newbold v. Sims, 2 Serg. & R. Penn. 317; James v. Browne, 1 Dall. 339; Sturges v. Bush, 5 Day, Conn. 452.

49 Beitler v. Ziegler, 1 Penn. 135; Metcalfe's Case, 11 Coke, 38.

50 1 Viner, Abr. Account, U, pl. 22.

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