Or in an action on the case; But not in trespass.* 2. LANE V. APPLEGATE. M. T. 1815. 1 Stark. 97. Declaration for words; plea, general issue. It was proved that an agreement had been entered into on the part of the plaintiff that he would wave his action for defamation in consideration of the defendant destroying certain documents in his possession, or which might afterwards come into his possession; and that the defendant, in pursuance of this agreement, had destroyed some of them. Per Lord Ellenborough. This is a good defence to the action, and admissible under the general issue. See 3 Burr. 1753; S. C. 1 Bl. Rep. 388; 1 Wils. 45 ; 2 Saund. 155. a. n. 4; 2 Vin. Abr. 11 pl. 27; Sid. 45. 3. DOE DEM. HILL V. LEO. T. T. 1812. 4 Taunt. 459. Action for mesne profits; plea, general issue. At the trial, evidence was offered of an agreement between the parties to wave the costs of the action of ejectment, and that the plaintiff had accepted rent of the defendant subsequently to that arrangement having been entered into; but evidence of these facts was holden inadmissible by the judge at the trial, and the Court afterwards approved of its rejection. See 7 Burr. 1353; 2 Wils. 173; 1 Stra. 61. Account, Action of.t-See tit. Account stated; Bailment; Guarantee; Money had and received; Principal and Agent. I. IN WHAT CASES IT IS OR IS NOT MAINTAIN ABLE, p. 139. II. OF THE PARTIES TO THE ACTION, p. 141. IV. OF PLEAS IN BAR TO THE ACCOUNT, p. 143. p. 144. VI. OF THE JUDGMENT TO ACCOUNT, AND PUT- VII. OF THE APPOINTMENT AND AUTHORITY OF VIII. OF THE PROCEEDINGS BEFORE THE AUDI- IX. EXECUTION, p. 150. 1 Phil. Ev. 134; 2 Selw. N. P. 1270, Or in an action of debt on a specialty, Rep. 119; Com. Dig. tit. Pleader; 2 W. 18; but under the plea of nil debet it would be admissible in evidence. See 12 Mod. 376. + The proceedings in an action of account being intricate, dilatory, and expensive, it is now almost obsolete, especially as a preference is given to the modern and more effective practice, either of supporting an action for money had and received; or if the matter be of a complicated nature, by proceeding in a court of equity, where the plaintiff can obtain a discovery of books and papers, and have the benefit of the defendant's oath, who, on the other hand, is entitled to all, both legal and equitable, allowances. See Eq. Ca. Ab. 5; Thompson v. Lambe, 7 Ves. 588, An action of I. IN WHAT CASES IT IS OR IS NOT MAINTAINABLE. account must be 1. HARTAP V. WARDLOVE. E. T. 1682. K. B. 2 Show. 301. brought where money has been delivered to a party for a parti and he has laid An action of indebitatus assumpsit does not lie against a man where cular purpose, he has received money of the plaintiff to lay out to a particular use, out part of it; and he has laid out part accordingly, for then he ought to be called but if none were to account for the same by action of account; but if none were laid laid out an indeout, then an indebitatus assumpsit lies to recover back the money; so if it were expended to another purpose, for there the sum is certain, and may be demanded as a debt. See Hob. 209; Cro. Eliz. 644; 1 Roll. Rep. 259; Owen, 86; to another pur1 Holt, N. P. C. 500. Post, tit. Money had and received. 2. ANONYMOUS. T. T. 1705. K. B. 11 Mod. 92. bitatus assumpsit lies to recover it back, or if it were expended pose the latter remedy may be adopted; But an action of account is neces Per Holl, C. J. Where money is delivered to a party not in pay- sary where moment of a debt, but ad computandum or merchandizandum, the ney is delivered remedy must be an action of account, in which the defendant shall have the benefit of an accountant. 3. to a defendant generally to make purchases of merchandize for the benefit of the plaintiff. an express pro SPURRAWAY V. ROGERS. E. T. 1700. K. B. 12 Mod. 517. Holt, C. J. If A. take goods from B. to account for them if they There is a discome to account, though A. gives no true account, yet if B. has tinction between agreed to it, it is well. And if one receive goods of another, and a delivery of moexpressly promise to be accountable for them, or to give an account ney, &c. upon of them, case will lie if he will not account upon that promise; but mise to account, upon a general bailment of goods without a particular promise to and a delivery account, then the sole remedy is by account. And if one covenant generally; on the or promise specially upon receipt of goods to be accountable for them, if he will not account, action upon the covenant or promise will lie, and an action of account lies upon the general receipt. 4. former assump sit lies in the latter account only. ANON. T. T. K. B. 11 Mod. 92. S. P. KEY V. GORDON. E. T. 1700. But on misapK. B. 12 Mod. 521. plication of mo a particular ser If money be given to another to buy goods, and he neglects to ney received for purchase them, for this breach of trust the plaintiff has an election to vice, bring either debt or account. Per Powell, J. 5. POULTER V. CORNWALL. M. T. 1705-6. K. B. 1 Salk. 9. S. P. KEY Or on refusal to v. GORDON. E. T. 1700. 12 Mod. 521. account, the debt is absolute; and Indebitatus assumpsit for money received ad computandum. Ver- debt or indebi'adiet for plaintiff. It was moved in arrest of judgment that this tus assumpsit action did not lie, as the appropriate remedy was an action of account. lies, and after Per Cur. The verdict has aided the declaration; for it must be verdict these facts will be preintended there was proof to the jury that the defendant refused to acsumed. count, or had done some other act that rendered him an absolute debtor. See Hob. 209; 1 Rol. Rep. 259; Cro. Eliz. 644; Owen, 86. An action of account lies to recover money 6. ANONYMOUS. E. T. 1700. K. B. 12 Mod. 509. In account it appeared in evidence that A. gave a note on C. to B. received by the to receive the money for the use of A.; B. being indebted to C., C. defendant to the accepts his own note from B. in discharge of B.'s debt; held that plaintiff's use. account was the proper form of action. Where there is an express promise the plaintiff has an elec tion to bring either account or assumpsit. Where there is a running account between 7. WILKIN V. WILKIN. H. T. 1689. K. B. 1 Salk. 9; S. C. Carth. 89. In assumpsit, the plaintiff declared that the defendant having proposed to go abroad, he delivered to him a box and goods, which the defendant promised to dispose of for him, and to give him an account thereof on his return. Plea in abatement, that he was the plaintiff's bailiff, and had merchandised the goods; and that the plaintiff ought to have brought an action of account, and not an action on the case. Per Cur. This plea cannot be supported; for the present action being founded on an express promise, assumpsit lies as well as account, and the plaintiff had his election to adopt either of the two remedies. Judgment for the plaintiff. In the report of this case in Carth. 89. it is said that Lord C. J. Holt declared he would not let the plaintiff give all the account in evidence, or enter into the particulars thereof, but that he should direct his proof only as to the damages he had sustained by not accounting according to the promise, for he would not ravel into an account in such actions. SCOTT V. M'INTOSH. T. T. PARR. T. T. 8. 1808. 2 Campb. 238. S. P. LINCOLN V. 1670. K. B. 2 Keb. 781. Indebitatus assumpsit for brokerage and commission, with the usual money counts and account stated. Plea, non assumpsit. It appeared that the action had been brought to recover the balance of a long broker, the only and complicated running account between the parties, a merchant and merchant and remedy at law is an action of account.* But for the balance of an ac broker. Per Lord Ellenborough. This is not the proper tribunal for investigating complicated mutual demands. The plaintiff should have brought an action of account, when auditors would have been appointed, who could have done justice to the parties without occasioning any inconvenience to the Court or jury. Plaintiff nonsuited. See Tri. per Pais, 407; Gilb. Law Ev. 192; Farrington v. Lee, 1 Mod. 269; Sandys v. Blodwell, W. Jones, 401; Owslon v. Ogle, 13 East, 538. and supra, 7. 9. TOMKINS AND OTHERS V. WILLSHEAR. E. T. 1814. C. P. 5 Taunt. 431; 1 Marsh. 115. S. C. ARNOLD V. WEBB. Western Spring Assizes, 1814. 5 Taunt. 432. notis. S. P. This was an action to recover the sum of 104/. on a balance of accounts. The plaintiffs were bankers, with whom the defendant had count assumpsit kept cash. In 1808 a balance was struck, and from that time till 1811 many sums had been paid in and drawn out without any ba lies, though the items on each side are nume rous. See Com. Dig. tit.Action upon the case upon Assumpsit, A. 1. where it is laid down that assumpsit lies in every case where account would lie, and refers to 1 Salk. 9. lance having been adjusted, and it was then found that the defendant was indebted to the plaintiffs in the sum sought to be recovered by the present action. Per Cur. An action of account is applicable where the plaintiff wants an account, and cannot give evidence of his right without the aid of the facilities that action affords. But here the plaintiff takes up the balance stated on the account, proceeds with his evidence through many other items, and establishes a balance due. It is therefore impossible to say that an action of assumpsit will not lie for that balance. The case of Scott v. M'Intosh (supra), which has been cited, was a case which never could have been tried; and there is a decency in counsel in not pressing such cases to a conclusion. II. OF PARTIES TO THE ACTION. GODFREY V. SAUNDERS. E. T. 1769. 3 Wils. 73. be the actual defaulter. Per Cur. Joint factors or co-bailiffs are like co-obligors, and are Joint factors or answerable for one another for the whole; for if only the factor who bailiffs may be actually embezzles the effects was answerable, it would be the same as sued jointly, if that one were only entrusted; hence a plea before auditors that the though only one defendant was joint bailiff with A. and that, with the consent of the plaintiff, he delivered over to A. all the effects, is bad, because, by making them joint bailiffs, the plaintiff gave such consent originally, and consenting to the transfer is nothing unless the plaintiff had also discharged him of the account. Every consignment to two factors jointly imports a consent by the consignor for them to trust one another, but both are answerable and accountable for the whole, though they have a right by the contract to deliver over to one another. See Goore v. Danberry, 2 Leon. 75. 76; Waugh v. Carver, 2 H. B 235; Bro. tit. Charge, pl. 49; Cowp. 814. in notis; 7 Taunt. 403; 2 Marsh. 437. See post, tit. Partners. III. OF THE DECLARATION. 1. BISHOP V. EAGLE. M. T. 1707. K. B. 11 Mod. 186. that defendant The declaration charged the defendant, as churchwarden, with A declaration having received several sums of money from the parishioners without against a reparticularly describing them by name. The defendant, in his ceiter, stating plea, negatived that he was churchwarden. On a motion in ar- received several rest of judgment it was contended that the declaration ought to have disclosed by whose hands the defendant had received the several by the hands of sums of money, and that the allegation per manus parochianorum the parishioners, was too general and unspecific. The Court concurred in this opinion, without stating them particularand the judgment was accordingly arrested. ly, is bad. 2. sums of money Where these particulars cannot be stated, the de WALKER V. HOLYDAY. M. T. 1704. C. P. 1 Com. Rep. 272. In account by one tenant in common against another as bailiff, and also as receiver of so much profits of the lands held in common, and fendant should for so much money by the defendant received to the plaintiff's use, be charged as bailiff. But the omission is only a defect the defendant demurred, it not being alleged from whose hands he received the money. But it was urged that the validity of this exception was taken away by 4 & 5 Anne, c. 16. which gives account to one tenant in common against another; so that it appearing by the declaration that they are tenants in common it is sufficient, without saying by whose hands the profits were received. Sed non allocatur; The statute only authorizes one tenant in common to charge the other as bailiff; At the common law, account did not lie by one tenant in common against his companion, unless where express authority was given to take his part, and then he was chargeable as bailiff, but now by the statute he may be charged if he receives his companion's share, though without his privity, yet he ought to be charged as bailiff by the express words of the statute, and cannot be charged as receiver; and therefore, as the declaration charges him as a bailiff, and also as a receiver, it ought to be shown by whose hands, as at common law. Judgment for the defendant. See 21 E. 3. 60; 41 E. 3; 1 Rol. Ab. 119. pl. 9; Co. Lit. 172. a ; 4 Leon. 39; Cro. Eliz. 83. 3. BURDET V. THRULE. H. T. 1673. K. B. 2 Lev. 126. in form, and In account by the plaintiff against the defendant, the declaration aided by a judg- stated quod reddat ei rationabilem compotum de tempore quo fuit ment quod com- receptor bonorum et merchandizorum ad compotum inde ei reddend, Sed qu. but contained no allegation as from whose hands the goods had been putet. A declaration against defen dant as re received. The plaintiff had obtained judgment quod computet by default. The defendant afterwards pleaded an insufficient plea before ceiver upon a the auditors, to which the plaintiff demurred, and obtained judgment. receipt, as It was moved in arrest of judgment, that as the declaration charged the merchandizandefendant as receiver, it ought to have been shown by whose hands; dum, for which he is chargeable and that the defendant ought not to have been described as receiver, as bailiff, is bad but as bailiff, for he was to sell and dispose of the property, and, as incident thereto, to be allowed his expenses and factorage. on demurrer. Sed per Cur. The plaintiff is entitled to judgment; for though he ought to have been described as bailiff, yet he should have demurred to the declaration to enable him to take advantage of the defect, and cannot object to it after a judgment quod computet. 4. WHEELER V. HORNE. T. T. 1740. C. P. Willes, 208. In an action of account the plaintiff declared that defendant was bailiff to him of one-twelfth part of two messuages and one hundred acres of land, and had received the annual rents and profits, to render an account when he should be required. Defendant pleaded that he never was bailiff or receiver to the plaintiff, to render an account in manner and form as the plaintiff had described. At the trial it appeared in evidence that the defendant never was in fact appointed bailiff or receiver, but that plaintiff and defendant were tenants in common of the premises, and that defendant received the rent and profits during the time laid in the declaration. A case was made for the opinion of the Court. Per Cur. The plaintiff in this case is not entitled to recover; for the defendant never having been duly appointed bailiff, the plaintiff *The declaration may charge the defendant as bailiff and likewise as receiver. F.N. B. 116; 1 Com. Dig. Accompt, A.2. |