1860. July Term.

Early & wife

V. Friend

& als.

or receiver, gives such action to one joint tenant or ten ant in common against the other as bailiff, for receiving more than comes to his just share or proportion. 1R. C. 1819, p. 509, § 81. The effect of this statute is now to be determined in Virginia.

It is well established that there is a material difference between the common law liability of a bailiff and the statutory liability of one receiving more than his just share the bailiff at common law may be subjected for what he might have made without his wilful default; whereas the liability under the statute is only for so much as the party actually received beyond his just share. Walker v. Holladay, Comyn. R. 272; Wheeler v. Horne, Willes. R. 208; Sturton v. Richardson, 13 M. & W. 21; Irvine v. Hanlin, 10 Serg. & R. 221. In a case under the statute, the declaration must allege not only such receiving, but from whom the money was received. McMurray v. Rawson, 3 Hill's R. 59. And this is a material allegation, with which the proof must correspond. Jordan v. Wilkins, 2 Wash. C. C. R. 482.

These cases-even those upon common law pleadings -are illustrative upon the important question, What is "receiving" of more than comes to his just share, within the meaning of the statute? They show that the action of account against a tenant in common lies only in respect of what he has received from another, and gives support to the position that the action does not lie unless the defendant be charged with having received rents and profits otherwise than by his occupancy-a position for which there is the authority of the Supreme Court of Massachusetts (Sargent v. Parsons, 12 Mass. R. 149); of the Lord Chancellor of England (Lord Cottenham) (McMahon v. Burchell, 2 Phill. R. 134, 22 Eng. Ch. R. 127); and the Court of Exchequer Chamber (Henderson v. Eason, 17 Adol. & El., n. s. 718, 79 Eng. C. L. 701, 9 Eng. L. & Eq. 339; 3 Rob. Pract., 173–4–5.)

may

It be that sometimes when a court makes a decree for partition, it may, if either of the co-owners has been actually receiving rents reserved from others, decree an account of the rents so received by him from others, and of the plaintiff's share of such receipts. But we say that the mere fact of his having occupied the property will not of itself make him liable for an occupation rent; for the effect of such a rule would be that one tenant in common, by keeping out of the actual occupation of the premises, might convert the other into his bailiff, and prevent him from occupying except upon the terms of paying rent. Adams' Eq., p. 232 of Eng., p. 525 of Am. ed.

It is not enough to show that the land was of a certain value a year to let. That was shown in Henderson v. Eason; it was proved there that the yearly value of the farm was £300, but such proof was of no use there, and should avail no more here.

In respect of the salt property, it is not enough to say that profits were made and actually taken by the Friends; it does not follow-it is impossible to say—that they have received more than their just share. The evidence authorizes the conclusion that if there be any enterprise uncertain and hazardous in the extreme, it is that of the manufacture of salt; and that to such a case as that before the court, the application of the principle of Henderson v. Eason is peculiarly proper. What the Exchequer Chamber deemed just with respect to the very uncertain and expensive crop of hops, cannot be less just with respect to the more uncertain and more expensive product of salt wells. If Joseph Friend has taken the whole of the salt that he raised, "is he to be accountable in such a case, when it is clear that if the speculation had been a losing one altogether he could not have called " on the plaintiff or Early for a share of the losses, as he would have been enabled to do if the property had

1860.

July Term.

Early & wife

V.

Friend

& als.

1860. July Term.

Early

& wife

V. Friend & als.

been worked "by the mutual agreement of the co-tenants"? Having employed his capital and his industry in this hazardous enterprise, without the co-operation of the plaintiff or Early, they have no right now to subject him to another hazardous operation-that of ascertaining, from the various statements and conflicting views of witnesses, and the uncertain judgment of a commissioner upon unsatisfactory evidence, whether or no he made a profit and what was the amount of that profit. Although he has taken the proceeds of all the salt that he raised," he cannot be said to receive more than his just share and proportion to which he is entitled as a tenant in common. He receives, in truth, the return for his own labor and capital, to which his co-tenant has no right."

It may well be that a court of equity had jurisdiction in Ruffners v. Lewis' ex'ors, 7 Leigh 720, without its following that there was jurisdiction to decree an account of profits in this cause. It may be considered clear, as Judge Story says, (1 Story's Eq., § 512,) “that if there is a trust, and the cestui que trust comes into equity upon his title to recover the estate, he will be decreed to have the further relief of an account of the rents and profits." But, in our case there is no such equitable ground for interference. It is the case of a legal right asserted-asserted by one who is not an infant, and who has no remedy in equity for anything beyond what he is entitled to recover at law. "There being no trust nor infant in the case," an account of rents and profits should be refused here, as it was refused in Hutton v. Simpson, 2 Vern. R. 722, 1 Eq. Cas. Abr., Tit. Account, p. 7.

Lord Hardwicke says it is difficult to go through with an action at law in case of an account of the profit of coal mines; and therefore this court would go further than in other cases. But it is the same as a bill for an

account of rents and profits of an estate, which cannot be maintained entirely on a legal title, unless infancy or something else is in the way. Sayer v. Pierce, 1 Ves. Sen. 232.

There is, we insist, nothing in this cause to distinguish it from Henderson v. Eason, or to prevent the principle of that decision from being applied to it. On the contrary, that principle is strikingly vindicated by what is found in this record.

Where can authority be found for holding that the Friends, standing merely to the plaintiff and Early as tenants in common, are to be bound to the same care, diligence and accuracy, and subjected to the same rigor, as actual bailiffs? Such a proposition is directly opposed to numerous decisions herein before mentioned. And yet, upon this wholly untenable ground, the conclusion is arrived at, that as they had not kept books, &c., such as bailiffs should have kept, all presumptions are to be made against them!

The authorities referred to by the other side sustain no such position in reference to a case like this.

In White v. Lady Lincoln, 8 Ves. 363, Jackson, who, after the death of the Duke of Newcastle, was clothed with duties as his executor, had, in his lifetime, stood to him as solicitor, and not merely as solicitor, but as general agent, auditor, land-steward and manager. With reference to these latter characters, the court laid down as a rule, that a man standing in that relation is bound to keep regular accounts of his transactions on behalf of his employer.

Lady Ormond v. Hutchinson, 13 Ves. R. 47, was a call for an account from a steward.

In Lupton v. White, 15 Ves. R. 432, the defendants stood before the court upon the faith of an express undertaking; they were bound to make it good, and could not be allowed to defeat it by contrivance.

There is an utter want of application of these authorities to a case like this; the doctrine applies to an agent, and is so laid down in 1 Story's Equ., § 568. The Friends stood in no such relation to the plaintiff or to Early; they occupied, not as agents or trustees of others, but in their own right, and were under no obligation to anybody to keep any account at all of what they received or what they spent in the business. The court is induced first to commit the error of treating the Friends as bailiffs of the plaintiff and of Early, and then this error is made the basis, and the only basis-the only justification-for still greater errors-still greater injustice.

ture.

In a case wherein Lord Eldon overruled a motion for a receiver, he considered the defendant as having a charge for all the expenditure he had incurred, and said, "It is impossible to remove him from the possession without reimbursing him all he has laid out, and is liable to, with reference to both the present and the old concerns." Norway v. Rowe, 19 Ves. R. 144. So when a bill is filed for partition, if it appear that the defendant has been at expense in improving the premises, a court of equity will not interfere for the plaintiff but on the terms of his making an allowance for such expendiSwan v. Swan, 8 Price's R. 518. And in cases in which, the working being by agreement between the parties, an account is allowed of the profits, it is also directed to be of the expenditure and of the sums contributed. The plaintiff must undertake to bear his share of the expenditure; he will not be allowed to dispute any bona fide expenditure of the defendants, and he must allow to the defendants interest upon the excess of their expenditure beyond their proper proportion. Hart v. Clarke, 27 Eng. L. & Eq. 567-8. This rule accords with what the Friends contended for, but is different from what was contended for by the plaintiff and Early.