ERRATA, &c. p. 241, 1. 25, for 16 G. 4. read 6 G. 4. p. 463, reference q. The judgment of B. R. in Sampson v. Easterby was affirmed on error in Exch. Ch. 6 Bingh. 694. p. 1131, 2, for PARTNERS read NUSANCE. p. 1330, reference o, for Pratts v. Hawkins read Matts v. Hawkins. CHAP. I. OF THE ACTION OF ACCOUNT. I. In what Cases the Action of Account may be main tained. II. Of the Pleadings and Evidence. III. Of the Judgment, 1. To Account. IV. Execution. 2. Final. I. In what Cases the Action of Account may be maintained. 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 account, 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); a I 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. so at the common law account will lie against a bailiff (2) or receiver, and in favour of trade and commerce by one inerchant 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 account. 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 shown by whose hands he received the money, as was required by the common law. 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 statute; 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). c 1 Inst. 172. a. d 1 Inst. 200. b. e Walker v. Holiday, Comyn's Rep.272. f I 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 sta 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; but for the ba lance of an account assumpsit lies, though the items on each side are 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. h Scott v. M'Intosh, 2 Camp. N. P. C. i Lit. s. 125. 1 Inst. 89 b. 90 b. 238. 2 Inst. 403. tute, differs from an action of account against a bailiff at common law; for a bailiff at common law was answerable, not only for his 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 lay †. 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+. * Hargrave's Co. Lit. 90. b. n. (3). + F. N. B. 117. 11 Rep. 90. a. F. N. B. 267. Lord Hale's note. k This action does not lie against an infant (6); nor by one 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", 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 (8). 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 per k 1 Inst. 88 b. 1 Inst. 172. a. n Southcot v. Rider, T. Raym. 57. (6) Hence an infant cannot be guardian in socage. 1 Inst. 88. b. (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. 1 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. 158. (8) Money cannot be paid into court in this action; per Willes, C. J. Bull. N. P. 128. |