Сн. 8. Art. 2. Co. E. 172. Mod. 94. in Jenkins & ux. v. Plombe. 12 Mod. 509. April 1, 1720, to October 1, 1734, and received the annual profits thereof for all that time, to render his reasonable account thereof to the plt. on demand; plea " he never was bailiff or receiver of the plt. for the premises mentioned in the declaration, to render an account thereof to the plt. in manner and form, as the plt. above declared," &c. and issue joined. On the trial it was proved the plt. and deft. were tenants in common of the premises, the plt. one twelfth and the deft. eleven twelfths; that the deft. lived on the premises and took the profits thereof, about £8 a year, and refused to account to the plt.; but the plt. did not prove she ever appointed the deft. her bailiff of her one twelfth part. The court held, "that an action of account would not lie by one tenant in common against another as his bailiff at common law, unless he were so appointed particularly;" "but it must be maintained, if at all, on the statute of the 4th and 5th of Ann, ch. 16," for receiving more than his just share and proportion; "that it is an action of a very different nature from an action of account against a bailiff at common law." 1st. "Because a bailiff at common law is answerable not only for his actual receipts, but for what he might have made of the land, without his wilful default:" "But by the plain words of the 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 or proportion." 2d. "Because the auditors in an action at common law, could not administer an oath, unless in one or two particular cases; but by the statute, the auditors may examine the parties on oath." "Now as the judgment must be general quod computet, how can the auditors tell in what manner he is to account, or whether they are to examine on oath or not, unless it appear on the record, in what capacity he is sued, and what sort of an action this is." The declaration since the act has always stated, that the plt. and deft. are tenants in common, and that the deft. has received more than his share; as a general statute it is not necessary to plead it, or to refer to it, but the plt. should have set forth so much, as to bring his case within the statute. §14. "If one enter into my land and take the profits, I may, if I chuse, charge him in account, as my bailiff, though there never was any privity between us till the action brought." A draws an order on C, to pay B money to A's use, В owes C, and on the note C discharges him thereof; A may have this action against B, for by this operation B has received A's money. Auditors are not as referees. Hence their report, when appointed by consent of parties in a suit in equity, is not in the nature of an award of arbitrators, but may be set aside by the court, though neither fraud, corruption, nor gross misconduct in the auditors be proved, 6 Cranch 8, 29. CH. 8. Art. 3. Brown. §15. Partners. Account lies by one partner against another, both being styled merchants. The deft. was charged as receiver 1 Dallas, 339, of monies to the joint benefit of the company from three per- 340, James v. sons. The proof was a receipt from one of them, and this was held to be good evidence to prove the charge. When there is no chancery, the court said the law courts must be liberal; and a partner charged as a receiver is entitled to a reasonable allowance. This is not the law as to a common receiver. There is a special trust reposed in such a partner receiver, to negotiate and do business for the common concern, for which a reasonable allowance is understood. 10 Mod. 22, Bishop v Eagle.-11 Mod. 187. § 16. Whenever a receiver, as a church warden, &c. is put to trouble and expense necessarily, he is to be viewed as a bailiff, and allowed for his trouble and his reasonable expenses, this is fairly implied in the nature of the transactions. § 17. When the verdict finds the deft., the plt's. bailiff or 12 Mod. 420, receiver generally, he must account for the whole declaration; but if specially, as to such and such things only, he is to account only for those things. Hiliard's case. § 18. In an action of account against a bailiff, the plt. need Co. L. 172. not shew by whose hands he received the monies; as in an account against a receiver he must, "except he be a merchant, and bring an account against another trading with him with a joint stock to their common benefit; in which case, naming himself a merchant, he may have an action of account against the other, naming him a merchant, and charge him as receiver of the money of him the plt., from whatever cause or contracts coming to their common use, and the other shall account for what he might have received, and be allowed his expenses. 292. 19. If before the auditors the deft. plead any matter in Watson on discharge, and the plt. denies this, so that they are at issue, Partnership, the auditors must certify this matter to the court, which will award a scire facias to try it. If the plt. be nonsuited after the first judgment, he may have a scire facias on it. § 20. If A, tenant in common, occupy all the land, and the 12 Mass. R. other do not claim to be admitted, and A do not hinder, he is 149, Sargent not liable to this action of account. This was not on the 4th of Anne 16. ART. 3. Cases in Massachusetts. Sundry declarations in this action in print. v Parsons. 1. In this case in June, 1798, L. M. died without ever Essex S.J. having had issue, and of course her husband was not tenant by 1807, Smith' Court, April, the courtesy; and her estate, being a certain messuage sub- & al. v. ject to sundry privileges, devised to the deft., descended to Moody. the deft., her sister of the whole blood, to J. S. one of the plts., CH. S. Art. 3. Imp. M. P. her brother of the half blood, and to A. B. another sister of the half blood; she had been married to the other plt. J. B. but died in 1802, leaving him alive, as tenant by the courtesy, and also, children; the deft. had been in possession, as the plts. supposed, of the whole without any agreement. 2. The plts. J. S. and J. B. brought an action of account, and alleged that said S., and B. and his wife in her right, and the deft., from June 20, 1798, to May 14, 1802, when Mrs. B. died, held together and undivided, as tenants in common, a parcel of land in bounded- - with a house and other buildings thereon, with the appurtenances, except the use of a chamber, and so excepting several small parts and privileges held by the deft. in severalty; and that she during all that time, had the care and management of the whole of the tenements aforesaid so held by them, to receive and take the rents, issues, and profits thereof, and as the bailiff of the said S. and B. of what she received more than her just share and proportion thereof, to render a reasonable account thereof to them on demand; and alleged further, she had received more than her just proportion &c. and had rendered no account &c. Second count the same, except therein B's wife was not mentioned. Third count was for time after Mrs. B. died, to wit, from May 15, 1802, to June 12, 1804, otherwise in the same form as the 2d count. Plea, never bailiff. This case is material as it respects the statute of the 4th and 5th of Anne, because it will be observed this action is grounded expressly upon it, and there was no doubt in the court or counsel, but that it had been adopted here. The plts. failed in this action, because the evidence proved that J. M. occupied the premises, and not the deft.; but that she was only a member of his family. It will be observed, that in the first count two tenants in common, one in his own right and one in his wife's right, joined in this action for the time she lived; that in the 2d count the husband sued, as to the same time, and did not notice his wife; and in the 3d count a tenant in common, in fee, and a tenant by the courtesy in common joined; and that the proportions claimed by the plts. were not stated. And the court inclined to think the declaration was good in these respects. It was objected that the heirs of L. M. were partners, not tenants in common, but this point was not decided. In the first count B joined his wife in making his claim, in 51.-2 Mod. the second not, and by the authorities it appears either is right. 670.-Dougl. 330-1 Wils. For a tort to her land, he and she must join; for here the 224.-2 Esp. cause of action will survive to her, as for a trespass, a nusance, 90. stopping her lights or way. But the profits of her land are his during the marriage, and he may avow alone, though he must state his case truly, "that the rent was due to him and his wife." Cro. Jam. 442. CH. 8. Art. 4. lents. Marsh. § 2. September, 1810, said S. brought an action of account 2 Esp. 49, against said J. M., for the time he was tenant in common by Wise v. Bildeed of said Moody's third part, by her heirship, not of her Essex S. J. privileges, to wit, from October 3, 1798, to August 1, 1801. Court, April, In his first count he stated, the plt., deft., and divers persons 1812, Smith v. unknown, held as tenants in common, the same messuage; also on said statute, and did not except in this count said privileges. Second count stated the plt. and deft., for the same time, held as tenants in common two undivided third parts of said premises; this also was on the statute. These counts were in fact waived, and the plt. filed a third on the statute, claiming an undivided third part, subject to said privileges as above. Pleas, never bailiff, and never bailiff within six years. Verdict and judgment for the plt. on the third count. It was said, though not much urged, that if there be three or more tenants in common, and one occupies all, another alone cannot have account; for the law does not raise a promise in the occupier to account to such tenants in common; so as to give twenty actions, if there be twenty tenants in common. But the action was supported. B. 118, 266. If three tenants in common, A, B, and C, A alone may have 1 Com. D. an action of account against B, as bailiff to the common benefit 115.-F. N. of A, B, and C, for it may be that A alone intrusted his part only to B; but 13 Ed. 2 is contra. Hachewell v. § 3. The plt., deft., and one Palam owned 38 tons of wine, 2 Co. 410.the deft. alone held it. The plt. sued for his third part. This was objected in arrest of judgment; but the court held the action could be supported, for Palam might refuse to sue, and the plt. might solely commit his third part to the deft., and the objection wss not taken in abatement. ART. 4. Pleas in account and evidence. § 1. The general 41 E. S. 3.9. issue in this action is never bailiff or receiver, and whatever 45 E. 3. 14. matter goes to shew the deft. never was accountable, ought to be so pleaded; for if true, the action never ought to be sent to auditors. Nonage is a good plea in bar. 49 Ed. 3. 10. § 2. It is a good plea in bar of the action that the deft. was Roll. Abr. the plt's. servant to drive his plough or keep his cattle, for i Bac. Abr. then he never was accountable. So it is a good plea in bar, 20, 21. that the plt. has released to the deft. all actions. So an award Cro. Car. 116 on all matters between the parties; so that the plt. accepted the deft's. bond for the same sum: this destroys the duty. Dyer, 22, §3. But it is no plea in bar to the action, that the deft. has 145.-6 Co. made payment of the money which he has received to ac-4 Leon 51. count with, or that he has made satisfaction for the same; for --Stile 353, Ferrer's case. Сн. 9. 1 Selwyn N. P. 2. these pleas, being matters that shew he was once accountable, are only to be made use of before auditors. § 4. Nothing that may be pleaded in bar to the action can be pleaded before auditors, for every matter ought to be pleaded in proper time. 5. If the deft. plead he was never receiver, he cannot give in evidence a bailment to deliver to another person, and that he has delivered accordingly. This evidence does not support the plea. Judgments so above. CHAPTER IX. ACTION OF ASSUMPSIT. ART. 1. On promises not under seal, expressed or implied; the three settled grounds thereof. See Ch. 187, a. 18, s. 72 to 78; Ch. 148, a. 7, s. 2. 1. The plaintiff may have an action of assumpsit on any promise not sealed, expressly made by the defts., or implied in law. 2. The courts of law in the United States, as well as in England, now admit three settled grounds of actions, by means of which, equity as well as justice is done in most cases. On the first, the plt. is allowed to state his case in his declaration, as it really exists, and to say an action has accrued to him to recover so and so of the deft.; and the law adjudges to the plt. what in justice and equity he ought to have. On the second ground the plt. may state he has paid and expended so much money to the deft's. use, and at his request, whenever that is the legal and equitable operation of the payment or expenditure. And the law presumes the deft. impliedly promises, or assumes to reimburse the plt. whatever and whenever, in equity and good conscience, he ought to do it, having a regard to a good consideration before described. On the third ground the plt. may state the deft. has received so much money to the plt's. use, whenever that is the legal and equitable operation of the receipt of it; and the law again will presume the deft. impliedly assumes to pay it to the plt., whenever in equity and good conscience he ought to do it, having regard to the consideration. 2. These grounds, together with a proper treatment of fraud, have rendered courts of equity of much less use than formerly, except in the modes of proof, in applying to the |