was committed in another county. See Marshall v. Hosmer, ch. 75, a. 8, s. 7; ch. 175, a. 6, s. 13, and other cases there; Leonow v. Ellis, ch. 105, a. 1, s. 35; French v. Judkins, ch. 75, a. 8, s. 16. Action for use and occupation is transitory, being founded on privity of contract, and not on privity of estate; debt on judgment, local; all actions for injuries to personal property and to personal rights are transitory; 9 Johns. R. 67, 70, sundry cases actions local and transitory, ch. 175, a. 6; see the words local and transitory, and venue, in the index. Trespass in taking a slave in Vermont from his master, tried in New York, 9 Johns. 67, plt. a citizen of New York. CH. 7. Art. 1. Coleman v. v. Cotton. 20. How if I fraudulently bar one of his action, he has 4 Day's Ca. one against me. A by mutual covenants became indebted to Wolcott.B and C jointly in a certain sum; B assigned his interest to 1 Dicken's D, after which A intending to defraud C, and knowing B was R. 215, Garth wholly insolvent, obtained his release of the covenant, and then pleaded it in bar of an action on the covenant and defeated it. Held, this was injury to C, for which he was entitled at law to recover against A, though no judgment on the release pleaded in bar. 1 Vesey 564. 390, Hunt ingdon v. Rumnill. 387, Martin v. Payne. § 21. An attorney's liability for negligence &c. If by it 3 Day's cases his client's debt be not recovered by the attorney, he may of course be liable, yet not for the loss of the evidence of it of course, and if sued may show his client has recovered his debt by another remedy, or that he has another remedy. $22. Per quod servitium amisit; the principles on which this 9 Johns. R. action is grounded. So long as a father remains liable to maintain his daughter under age, he has a right to reclaim her services, and the relation of master and servant will be presumed from this right as where a daughter 19 years old, with her father's consent, lived with her uncle, and worked for him when she pleased, and he agreed to pay her for her work, but no agreement for continuing in his house any time; when there she was seduced and got with child, and soon after returned to her father's, who maintained her and paid the expense of her lying in; she had no intention to return to him had not this misfortune happened. Held, he had a right to recover in this action on the principles above stated; but as the loss of service is the sole ground of this action, the father, in every case, must show he is entitled to the service, and has lost it by the deft's. wrongful conduct. See cases, ch. 5, a. 7; ch. 59, a. 6, s. 9; ch. 85; ch. 173, a. 5. The daughter was a witness to prove the facts. In this case the father had made no contract hiring out his daughter, he retained the legal control he had over her services; hence the relation of master and servant remained, and her volition or intention not to return, could not affect his right. 5 East 45, 49, seems contra, for it does not appear Сн. 8. the father had lost his legal control over the services of his minor daughter, and the case seems to have turned on her intention not to return to her father's house. 10 Johns. R. 115, 117, Nicholson v. Stryther, a father cannot have trespass for seducing his daughter, or getting her with child, per quod &c., where she is above the age of 21 years, unless she is actually in his service, so as to constitute the relation of master and servant. 2 Phil. Evid. 157; Fores v. Wilson, Peake's N. P. 55. 1 Selwyn N. Lev. 24.- 1 Selw. N. P. -1 Bac. CHAPTER VIII. ACCOUNT. ART. 1. The action of account is founded on contract and privity in law, or by provision of the parties, and must be for things uncertain. 1. As this action is founded on contract, on which assumpsit in most cases lies, it is not often necessary to bring this kind of action. But as the court, of its own authority, can appoint auditors to adjust the accounts between the parties, which in some cases may be long and intricate, and very perplexing to a jury, it may often be useful, especially where there is no court of chancery, to enforce the settlement of such accounts in this - form of action, and in which too the parties in many cases can be examined on oath. § 2. As this action of account is founded on contract, all who make it must be joined in the action. §3. In this action there must be privity between the parties; and the deft. must not be a person, who has any claim in the thing to be accounted for. 4. At common law this action lay against one as guardian in socage, bailiff, or receiver, or by one in favor of trade and commerce, against another, wherein both were named mer-Co. L. 172. chants. By a bailiff is understood a servant who has charge of lands, goods, and chattels, to make the best benefit for the owner, and to have his reasonable charges and expenses deducted, and is accountable for the profits he reasonably might have made and by a receiver is understood one who receives monies, and is to render an account of them; but he is allowRaym. 1223. ed only such charges and expenses as are agreed upon by the parties and the plt. must state by whose hands the deft. received the monies, that he may know in season the nature of the charge, and how to defend against it. Abr. 19.Imp. M. P. 148.-3 Bl. Com. 162, 163.-Plow. 14.-2 Ld. -2 Salk 558. § 5. Equity in general does not decree an account of mesne profits where the title is merely legal, or the plt. is out of possession, except the plt. be a minor, or kept out of his title by some trust, mistake, or fraud on the deft's. part; see ch. 515, 3 Atkins 130; and in such cases the court direct the account to be taken from the accruing of the title. 1 CH. 8. Art. 1. n Atk. 524, Norton v. Fruker; Bolton, Duke of, 2 Dal, 176, Haldane v. -3 Dal. 503. $6. Indebitatus assumpsit was supported on these princi- v. Deane. ples against executors, for the mesne profits after recovery in 2 ejectment, and account would also lie. So where the plt. has Duche's been prevented from recovery in ejectment, by a rule of a Ex'rs. court of law, to stay proceedings until another action pending 6 Ves. jun. was decided, and by an injunction out of chancery obtained 88, 90.— by the tenant, who finally failed at law and in equity, the court 2 Dal. 178. decreed an account against his executors of the mesne profits from the time the title accrued. Pulteney v. Warren. 7. When a widow applies to chancery for her dower, it 2 Br. Ch. R. gives her an account from the time her title accrued; the 620, Dormer mesne profits are viewed as her support, and not as vindictive damages. v. Fortescue. -6 Ves. jun. 89.-1 Bin. Johnson. 8. This action of account is the proper remedy for one 191, Ozeas v. partner against another; one cannot have assumpsit against 4 Dall. 434. the other, or his administrator, for the proceeds of a partnership adventure, except a balance be settled, and an express promise to pay it. 2 Cain. 293; 2 D. & E. 483; note in Foster v. Allanson, and ch. 55, a. 5, s. 15. Mumford v. v. Usher. § 9. An action of account lies in every case where one has Kirby's R. received monies to the use of another, especially if received 163, 164, of a third person to be delivered over, and though assumpsit Avery. may lie also; and the plt. has his election where there is a Kirby's R. promise to account. Wetmore v. Woodridge. It belongs ex- 353, Spencer clusively to the auditors to decide on facts, and their report 2 Day's Ca. cannot be set aside for a mistake in point of fact, but other- 116. wise for a mistake of the law; they ought to find nothing in arrear. 2 Day's Ca. 116, their law decisions may be reexamined. $10. Personal estate is devised to a woman during her 2 Day's widowhood, remainder over to B, she marries, account lies Ca. 28, Griggs v. against her and her husband to recover it in favor of B. See Dodge. ch. 38, a. 13. Hale.--Chan 11. The plt. in this action alleged that he and the deft., 3 Day's Ca. by agreement, built a ship in equal moities, and agreed to share 377, Hale v. the avails equally; that she made several voyages, with car- cery has congoes on freight, specifying some of them, and directed by the current jurisplt. and deft., and was at last sold at Cadiz, and that the matters of acdeft. received more than his proportion of the ship, both of counts with the voyages and the sale. Held, they were under this declar- the courts of diction in all law.3 Johns. R. 470, & 2 Caine's Ca. in E. 105. Сн. 8. Art. 2. 13 Ed. 1. Statute of Marlb. &c. 291. Mass. act, Act of Feb. ation joint owners of the ship, and jointly interested in all her voyages, from the time she was built to the time of the sale, and that it was proper for the auditors to enquire into the earnings of the ship, and the losses incidental to the voyage, in order to adjust the account of the parties. 66 ART. 2. Sundry cases. 1. This statute gave this action of account to executors. Statute of Marlb. enacted, that when land holden in socage was in custody of the heir's relations, during his minority, when he came of age they should answer the issues by lawful account." §2. By 31 Ed. 3, an account was given to administrators, and by the 4th of Anne actions of account may be brought against the executors and administrators of every guardian, bailiff, or receiver, and by one joint tenant, or tenant in common, his executors or administrators, against the other as baiWatson on liff for receiving more than his just share or proportion, and Partnership, against their executors or administrators, by 13 E. 3 to the executors of a merchant, by 25 E. 3 to executors of executors. § 3. By this act it is enacted, that on a judgment rendered Feb. 17, 1786. in the Common Pleas, that the deft. account, he may appeal 20, 1818, au- from it, before auditors be appointed, and if he do not, and on thorizes the his appeal from the second or final judgment on the audiand C. P. to tor's report, he shall not be entitled to try the issue, bailiff or appoint audi- not bailiff, in the Supreme Judicial Court; but the first judgment that he accounts shall stand in full force, and he account accordingly; and if he do not enter and prosecute his appeal, on the first judgment, it may be confirmed, on complaint; and auditors may be appointed; and if he refuse to appear before them, or refuse or neglect to account, they may certify it, pp. 213, 214. and thereon the court may cause damages to be assessed by a jury, and enter judgment, and for reasonable costs, and award execution accordingly. S. J. Court tors as the case may require.Laws of Maine, ch. 59, sect. 23, 24, 25, 11 Co. 38.Imp. M.P. 150. Imp. M. P. 147.-Owen 36.-1 Bac. Abr. 17.-1 12 Mod. 517. 4. By the English law, error does not lie on the first judgment to account; nor by our law, and for an additional reason, by that an appeal lies upon it. 5. The plt. cannot have this action against a minor as bailiff or receiver, or where there is no privity, as where A delivers goods to B to my use, or to be delivered over to me, Com. D. 113. for want of privity between me and B, I cannot have this action against him: nor does it lie for me, who take for the goods or money, security on the delivery thereof; for when one does this, the receiver cannot be said to be possessed of the goods or money, to render an account of the profits, also, when a person takes such a special contract, he must sue upon it. § 6. But if a bailiff receive my money, and promise to pay it, I may have assumpsit againt him; but this security is CH. 8. Art. 2. intended to be such as will of itself support an action. Again, to support this action of account, the deft. must have not only a bare oversight, as a shepherd of sheep, a butler of plate, &c. but so far a property as to be able to change the same for the benefit of the bailor, or at least, to make advantage thereof in 1 Co. 93.order to render an account for the same; nor does this ac- Imp. M. P. tion lie against a disseisor, or a wrong-doer, or an apprentice. 148. v. Saunders. § 7. Account lies against a surviving bailiff-as where the 3 Wils. 72, plt. intrusted to the deft. and his partner, since deceased, 118, Godfrey some chests of coral beads, one partner died, and this action was brought and supported against the survivor, stating the partnership trust and survivorship in the declaration as bailiffs of the plt. from → to &c. Mod. Ent. 52 8. So this action lies against the agents of prize shares, Amer. Prec. by one entitled to a share; so against one as bailiff of five 93, 94 hogsheads of tobacco, sent to a foreign market to sell on Imp. M. P. the plt's. account, and for his profit; so against one as bailiff 153. and receiver, for the issues of lands and monies; so against guardian, for the profits of land; so against a partner; so by one joint tenant of a house against another; so it lies for the profits of £10, though not for £10, for the profits are uncertain. 9. But this action does not lie for rent reserved on a Bro. Tit. Aclease, nor against a lessee of goods who wastes them; nor compt 35. against a bailee of goods, who wastes them, or who refuses to deliver them; nor in fact for any tort, or certaim debt, but only on contract and for uncertain damages. 19.-F. N. B. 10. But it lies against a parent of an infant who receives 1 Bac. Abr. the profits of his lands; so against a stranger as guardian, 117.-1 Com. who enters and receives profits of the minor's land. So it D. 110.-Co. lies against one, who of his own head receives the profits of L. 89.-Cro. my land. In this case the tort must be waived. 11. The plt. stated that being about to go beyond sea, he delivered a box and goods to the deft., who promised to dispose of them for him, and to render him an account of them on the deft's. return. He pleaded in abatement he was the plt's. bailiff, and merchandised the said goods, and that he ought to bring account, and not case; but judgment was given for the plt., for the action being grounded on an express promise, assumpsit lies, as well as account, and the plt. has his election, and whenever one acts as bailiff, he promises to render an account. Car. 229. Salk. 9. Wilkins v. Bac. Abr. 19, 20. 1 Com. D. 149. 54.-Sulli § 12. At common law, if one joint tenant sold the wood Dr. and Stud. and kept the money, the other had no remedy: so as to the profits of the land, before the 4th and 5th of Ann. van, 170. Willes 208, 211, Wheeler 13. In this case the declaration stated, that the deft. was bailiff of the plt. of one twelfth part of certain lands, &c. from . Horne. v. |