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.

IV. Execution.

I. In what Cases the Action of Account may be ma?.-. 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 before the deputy-remembrancer 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 disseissor or other wrongdoer,) or a privity in law, as in the case of a guardian, &c.

By the common law, an action of account may be maintained by the heir, after he has attained the age of 14 years,

a 1 Inst. 172. a.

b Lit. s. 123. 1 Inst. 89. 2.

against the guardian in socage (1); so at the common law account will lie against a bailiff (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 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 specially, 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 of 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

€ 1 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, 203.

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

(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 au 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.

has received more than his just share. It is not sufficient to charge defendant merely as bailiff (3).

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..

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 (acccording 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 Edw. 3. stat. 5. c. 5. has extended the same remedy to the executors of executors.

At the common law, this aetion 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 i Lit. s. 125. 1 Inst. 89. b. go. b. 2 Iust. 403.

h Scott v. M'Intosh, 2 Camp, N. P. C.

238.

actual

(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 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 ein powers 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.

lie by executors*; 2. That account could not be maintained (5) These rules of the common law, viz. 1. That account did not 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 It should also be remarked, that though at the common 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.

lay t.

law

*

Hargrave's Co. Lit. 99. b. n. (3). + F. N. B. 117. 11 Rep. 90. a.

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