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Under ch, 109, $ 7, of the Rev. Stat. of Mass., “ if all the persons, named in the writ as trustees, dwell in one county, the writ shall be returnable in that county ; otherwise, it may be returnable in any county in which either of the trustees dwells, without regard to the domicil of the principal parties.
(See Red. Stat. of Maine, ch. 119.]
PRECEDENTS OF DECLARATIONS.
[By ch. 118, § 43, of the Rev. Slat. of Massachusetts, the action of account is abolished. Where the nature of an account is such that it cannot be conveniently adjusted in an action of Assumpsit a bill of equity may be brought. See 12 Mass. R. 152.]
Account is the proper action to be brought, whenever a man by reason of his office, as executor, administrator, or guardian ; or, on account of any sums of money he has received, on behalf of another; or, on account of any business he has undertaken for another, as the management of his lands, or the disposal and sale of his merchandize ; has become liable to render an account.
It is also the proper action to be brought by one partner in trade, or part owner of a chattel, against another, for an account of profits. So also it is a proper remedy for one joint-tenant, or tenant in common, against another, who has received more than his share of the profits.
So if A makes a bailment to B, to deliver to C; and B does not deliver, A may maintain account against B. 2 Lev. 31. But C can only maintain trover or replevin.
In order to maintain this action, there must be a privity between the parties, being grounded on a contract, and all the contracting parties must join and be joined. It cannot be brought against one, who has given security for the property entrusted to him, of which an account is required ; nor against a mere servant to whom the custody of property is delivered ; nor against a minor, nor an apprentice, as such ; nor against a disseizor, or other wrongdoer, between whom and the plaintiff no privity exists. Against one as bailiff, it does not lie for any ascertained sum of money, but only for uncer. tain damages. Thus against a bailiff it will lie for the profits of a certain sum of money, or quantities of goods, but not for the sum itself, or the precise goods ; for the precise sum of money he should be charged as receiver. But if any one should take the profits of my lands, I may waive the tort, and bring account against him, and charge him as receiver or bailif; or, if I am an infant under fourteen years of age, I may bring account against him as guardian. Fitz. N. B. 117, 118.
Account will not lie for rent on a lease, but only covenant or debt; nor against a bailee of goods to deliver over to a third person, can account be maintained by such person, but only detinue, trover, or replevin. But where one has covenanted by deed to account, account may be maintained against him as well as covenant. 1 Rol. 116 ; L. 20, 27.
With regard to the parties, an executor or administrator, or a survivor of two or more, may sue an executor or administrator, &c. according to the circumstances of each case. If A, B, and C are joint-tenants, tenants in common, or co-parceners, and A receives all the profits, without any express agreement to that effect between all of them, B may maintain account against A without joining C. See 2 Cro. 210.
An executor cannot maintain Account against his co-executor. Com. Dig. Accompt (D.)
Of the Declaration in Account.
The plaintiff, in his declaration, must take care to charge the defendant properly, as bailiff, receiver, or guardian, according to the fact. 2 Bul. 277.
A bailiff hath the charge of lands, goods, or chattels, to make the best benefit thereof, for the owner.
A receiver is one who has received money, and is to account for it. A bailiff is answerable for the profits he might have made ; a receiver for the precise sum or goods only. A bailiff, as well as a guardian, is to be allowed his disbursements and reasonable charg
and a bailiff, receiver, or guardian, shall be allowed whatever is lost by inevitable accident. A receiver is allowed nothing for his expenses, but what was agreed between the parties.
In declaring against one as bailiff, it is unnecessary to state from whom he received the money. But in declaring against one as receiver, it is necessary to state by whose hands he received.
Co. Litt. 172, a. ; 3 Keb. 425. However, the omission is only matter of form, and is aided by the judgment to account. 2 Lev. 126. But it is not necessary to be particular with regard to the precise time, or the exact amount of the money. Ibid.
A bailiff cannot properly be charged as receiver; nor a receiver, as bailiff; since their accountability and the allowances to be made them are different. 1 Rol. 119.
On the first judgment to account, the defendant should be sworn to account well and lawfully. Br. Account, Pl. 10; Imp. Pl. 154.
The following precedents in account, by the allegation of a promise to render a reasonable account on demand, may easily be altered to assumpsit. See declarations in assumpsit in the nature of account ; post.
Of Proceedings before Auditors. After the interlocutory judgment to account, auditors are appointed whose sole business is to adjust the accounts between the parties. For this purpose, the parties themselves are admitted as witnesses to their accounts. The report of the auditors, if not objected to by the parties, will be considered as conclusive of the balance struck; but their report may be objected to, either on account of any mistake of the law; or any improper admission or rejection of evidence; or because they have taken into consideration matters not submitted to them. 2 Day's Rep. 116. So also for corruption or partiality.
DECLARATIONS IN ACCOUNT.
Adm'r v. Bailiff and Receiver. In a plea of account; for that the said D, at &c., from &c., to &c., was the bailiff and receiver of the said S [intestate], he being all that time living, during which time the said D received, of the monyes of the said S, at &c., from &c., to &c., aforesaid, all the several sums of money, mentioned in the schedule annexed, amounting to &c., to merchandise with, and make profits thereof, and to render a reasonable account thereof to the said S on demand; yet the said D, though often requested, never rendered such reasonable account to the said S in bis litetime, nor since his decease, to the plaintiff, though requested, but still neglects to do it. Martin adm'r v. Thompson.
Jona. Fay. Ex'r of Partner v. One of Surviving Partners, as bailiff of goods,
&c. In a plea of account; for that the said D was bailiff to the said S [intestate], however and from whatever cause and contract arising, for the common use and benefit of the said S, the said D, and one W. P., from &c. to &c. at &c., of certain merchandise of the said S, to wit, of the third part of thirty-eight tuns of wine, &c., of the value of &c., which merchardise the said S, the said D, and W. P., in the life of said S, had occupied for their common use and benefit; and the same, during the time aforesaid, were entrusted to the hands of the said D, by the assent of the said S and W. P., to merchandise for their common profit; and the said D thereof to render his reasonable account to the said S when thereto requested; yet &c. as before.
Note. In a count similar to this, judgment was attempted to be arrested, because the plaintiff had declared against D as a general bailiff; whereas it appeared, that he was a special one; for it is between merchants and tenants in common; and because the plaintiff bas declared for a third part, when he ought to have declared for the whole; and because W. P. ought to have been joined. But the objections were overruled; for the plaintiff might sue, though his companion would not; and it may be, he committed only his third part to the defendant. 2 Cro. 410, Hackwell et uz. v. Eastman ; í Ld. Ray. 340. (MSS.)
By one tenant in common against another as his bailiff. In a plea of account; for that whereas the said D, on &c., and from thence continually until &c., was bailiff of the plaintiff for a certain farm, situate, lying, and bein', &c. and during all that time, receiving the issues thereof and whereof the said plaintiff and the said D were seized undividedly, as tenants in common, viz. the said plaintiff of one undivided moiety thereof, and the said D of the other moiety; to the common profit of the said plaintiff and the said D, and to render a reasonable account thereof to the plaintiff when thereto requested; yet, though requested, &c. i Went. 83. Against bailif, for not rendering account of goods delivered to
merchandise with. In a plea of account; for that whereas the said D, at &c. had been bailiff to the plaintiff, from the &c. day of &r., to the &c. day of &c., and, during all that time had the care and management of divers goods and chattels of the plaintiff, to wit, one half of the Snow, called &c., with all her tackle, apparel, furniture, and appurtenances, of the value of &c., also one half of the sloop, called &c., with all her tackle &c., of the value of &c., and also one half of the cargo of said sloop, consisting of divers goods and merchandises; to wit, &c. of the value of &c., to merchandise and make profit thereof for the plaintiff; and thereof to render the plaintiff, the said D's reasonable account on demand ; yet the said D, though requested, hath not rendered his reasonable account thereof, but neglects so to do.
Another. In a plea of account; for that the said D, at &c., had been bailiff to the plaintiff, from the &c. day of &c.,