CH. S. Imp. M. P. 670.-Dougl. her brother of the half blood, and to A. B. another sister of the half blood; she had been married to the other pit. 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. 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, stopping her lights or way. But the profits of her land are his during the marriage, CH. 8. and he may avow alone, though he must state his case truly, Art. 4. "that the rent was due to him and his wife." Cro. Jam. 442. lents. 1812, Smith v. 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 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. Eastman. § 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 Hachewell v. 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. 3. 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. 121 to 123.--1 Bac. Abr. § 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 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. § 3. But it is no plea in bar to the action, that the deft. has made payment of the money which he has received to account with, or that he has made satisfaction for the same; for Dyer, 22, Ferrer's case. --4 Leon 51. Stile 353, 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 CH. 9. Art. 1. oaths and consciences of the parties; and in the modes of relief, in ordering agreements and contracts to be, in some cases, specifically executed. The difference between equity, as a matter of right, and law, is inconsiderable. Equity is the 3 Bl. Com. soul of all law, and all good law is made in reference to equity. 429, 438."Equity must follow and not lead the law :" it must yield to 2 Com. D. Dougl. 22.the law. However desirable, however politically and even 480 to 483morally right it may be, to divide the estate of the intestate Dr. & Stud. 45, 57, 58, 59, parent among his children, yet if the law gives it to one alone, 60, 61, 82, equity can afford no relief. "A court of equity determines according to the spirit of the rule, so does a court of law;" "both, according to the true meaning of the legislature." Equity at most, is to temper and mitigate the rigour of the law; that is, to make the general rules of law enacted by men, to conform in certain special cases to the law of reason, an exception impliedly understood in each general rule of positive law. It follows the intent rather than the words of the law. It corrects the injustice of positive law, and supplies its defects where the collateral consequences of it were not intended. § 3. Frauds, accidents, and trusts, (except a few trusts) are cognisable in a court of law, as well as in equity. A court of equity is governed by established rules and precedents. "In fact, the courts of law and courts of equity ought to have exactly the same rules of property, of evidence, and of interpretation." The power of the law courts of late have been much extended to most matters in equity. Lord Mansfield said, "in construing agreements, I know no difference between Dougl. 277. a court of law and a court of equity. Each can only explain the true meaning of the parties, neither can make an agreement for them." Law Gr. 113, 115. 2 Bl. Com. 4. A court of law allows any thing to be averred, even against a deed, by way of fraud; as that the consideration expressed in the deed, and therein said to be paid, in fact was not paid. So the law considers a gift or conveyance of land, made with an intent in the parties to it, to defraud a pur-441-3 Co. chaser on good consideration, as void, as against him; and so 77, Farmer's as to creditors: so a fine levied by fraud is void in law. The case. marks of fraud are the same in law as in equity; equity cannot affect any matter the necessary, direct, and plain consequence of a principle of law. Swift. Cowper 432, 432.-2 Mor. 5. The law considers a deed as fraudulent, if made with Kennett.an intent, in both parties to it, to defraud creditors, though there 4 D. & E. be a valuable consideration, and possession be changed; lies R. 63. for monies paid on a compromise, and no consideration. 1 Burr. 396.— 6. Fraud and covin, in judgment of law, may avoid every kind of act. So the law deems the fraud of the agent, the fraud Con. 417, 4 T. R. 39.1 Wood's 418. Сн. 9. of the principal: also the law deems it a fraud if A buy land, having notice that B has a deed of it, not recorded. 7. The actions of assumpsit are numerous; they rest on one general principle, which applies to a multitude of cases. 8. Oftentimes the reason and nature of an action is best expressed, by taking a few of the operative words in the declaration. In these the essence of the action is usually seen. 2 W. Bl. 1269, It is briefly done, and the repetition of forms is avoided. The obligor on a respondentia bond, engaged by endorsment on it to pay it to any assignee. Any assignee may have this action. Fenner v. Meares. 13 Mass. R. 284, Rider v. Robbins, in error. on 9. A very usual kind of declaration in assumpsit in Massachusetts has existed time out of mind; and the cases in which this form of declaring has been used, have been extremely numerous, but rarely ever called in question. It is short, simple, and plain; and exactly suited to a great variety of cases, by means of an account annexed to the writ and declaration, in the form of a common ledger-book account in words and figures. In this form the deft. is sued to answer to the plt. in a plea of the case, [more formally, in a plea of trespass on the case,]" for that the said D (deft.) at being indebted to the plt. in the sum of according to the annexed account, then and there in consideration thereof, promised the plt. to pay him that sum on demand; yet, though requested, the said D has never paid them, but neglects and refuses so to do." This account annexed may contain matters, usually charged on book, however many-and counts may be added in quantum meruit and quantum valebant, with like reference to the same annexed accounts; and if the said request and refusal be expressed in the first count, and omitted in the after ones, the declaration will be good, because such averment in the first count may be applied to them. In such an action, in substance, in this case there was such a declaration, and on error brought, the first error assigned was, that by the first count there was no sufficient cause of action set forth; and that in the second, the plt. had alleged no breach of the promise therein declared on. Judgment affirmed. First error was assigned, on the ground the account or schedule annexed constituted no part of the declaration. As to the second, Lawes' Pleading in Assumpsit, 258, was relied on. For the deft. in error were cited Chitty on Pleading 324, 327, 313.-Ld. Ray. 284.-5 East 270.-1 Wils. 33.-1 Saund. 228. As to the first, the court decided the declaration was good on immemorial practice. As to the second, the court said, the authorities shew clearly, that one averment of request and refusal to pay is sufficient for any number of counts in assumpsit; bringing the action too, is a request in law, 1 Wils. 33. See Stennett v. Hogg, Ch. 184, a. 5. 2. 5. However, there are some dic |