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3- English: Harrington v. Deane, fob. 36, 80 Eng.

Rep. 186 (1603—1625); Illinois: Lee v. Abrams, 12

Ill. 111 (1850); Pennsylvania: Bredin v. Dwen, 2

Watts. (Pa.) 95 (1833); Bredin v. Kingland, 4

Watts. (Pa.) 420 (1835); Shriver V. Nimick, 41 Pa.

91 (1~61).


4. Connecticut: Beach v. flotchkiss, 2 Conn. 425

(1818); Massachusetts: Fowle v. Kirkland, 18 Pick.

(Mass.) 299 (1836); New York: Kelly v. Kelly, 3

Barb. (N.Y.) 419 (1848); Appleby v. Brown, 24 N.Y.

143 (1861)~ Pennsylvania: Griffith v. WIlling, 3 Bin.

(Pa.) 317 (1811); Irvine v. Hanlin, 10 Serg. & B.

(Pa.) 220 (1823); Leonard v. Leonard, I Watts & S.

(Pa.) 342 (1841).

ners, to compel an account of profits or mon­eys received. It was an action, provided by law, in favor of merchants, and for advance­ment of trade and traffic, as when two joint merchants occupy their stock of goods and merchandise in common, to their common profit, one of them, naming himself a mer­chant, shall have an account against the other, naming him a merchant, and shall charge him as receptor denariorum.” ~ Clfly the Common Law, the action lay only against a Guardian in Socage, Bailiff, or Receiver, or by one in favor of trade and commerce against another wherein both were named merchants; that is to say, against all who had charge or possession of the lands, goods, chattels, or moneys of another with a lia­bility to render an account thereof, such as Partners, Trustees, Guardians, and all who could be specially described as above.” 6 At
5. Appleby V. Brown, 24 N.Y. 143 (1861); Coke, Lit­tleton, 172a (1st Am. from 10th Eng. ed., Philadel­phia 1853).
A receiver is a collector, who has received money; a bailiff is a manager of an estate, who has hail charge of property under a duty to account for its proceeds or profits. 3 Street, Foundations of Le­gal Liability, e. IX, 109—111 (Northport 1906). A factor or commission merchant is one employed to buy or sell goods. Ames, Lectures on Legal His­tory, Lecture XI, Account, 116 (Cambridge 1913).
6. 1 Am. & Eng.Encyc.Law 129 (1st ed. Philadelphia,

1887).
Account lies against an attorney for money received from his client, Brcdin v. Khiglnnd, 4 Watts (Pa.) 420 (1835); and generally wherever one person has received money as the agent of another, and should account therefor. Long v. Fitzimmons, 1 Watts & S. (Pa.) 530 (1841); Shriver v. Nimlck, 41 Pa. 91 (1861).


If a father takes possession of and manages the es­tate of his deceased son, without administering, he may be held liable to the child of such decedent in account render, as agent or bailiff. McLean’s Ex’rs ‘cc Wade, 53 Pa. 146 (1866).
And the action lies by a landlord against his tenant, who is bound to render a portion of the profits as rent. Long v. Fitzimmons, 1 Watts & S. (Pa.) 530 (1841).
It lies by one tenant in common against the other for his share of the rents and profits. Connecticut:

Barnum v. Landon, 25 Conn. 137 (1856); Illinois;

Cheney V. RIcks, 187 Ill. 171, 58 ?S.E. 234 (1900);

312


OFFENSIVE PLEADINGS

Cli. 15


Common Law the action could be maintained between Mercantile Partners where there were two of them only, and not when the firm consisted of more than two.3 But in most states where the action is in use this has been changed by statutes.6 Indeed, in many respects the scope of this action has been very much extended by statute, both in England and in this country.°
The Action is in Form an Action arising Ex Contractu, and will only lie where there is a relation giving rise to an Obligation to Account between the parties upon which it can be founded. This Obligation, like that of Debt, is specifically enforced. There is an analogy between the Obligation to Ac­count and a Trust, and it has been called a Common-Law Tz-ust.1°
Wolkan V. Wolkau, 202 IIl.App. 306 (1017); Penn­sylvania: Enterprise Oil & Gas Co. v. National Transit Co., 172 Pa. 421, 33 A. 687, 51 A:n.St,Rep.

746 (1806).


And it lies by a cestui que trust (beneficiary) ngaiust a trustee who has received the profits of lands, Den­nison v. Goehring, 7 Pa. 175, 47 Am.Dec. 505 (1847); or against a testamentary trustee for an account of his receipts and expenditures. Bretlin v. Dwen, 2 Watts (Pa.) 95 (1833).
7. Connecticut: Beach v. Hotchkiss, 2 Conn. 425 (1818); New York: Applel’y v. Brown, 2-1 N.Y. 143 (1861).
~. Sec Park v. McGowon, 04 Vt. 173, 23 A. 855 (1802).
9. 1 An. & Eag.Encyc.La~v 130 (1st ed. Philadelphia,

1887). See, also, the following cases: Connecticut:

Barnum v. Landon, 25 Conn. 137 (1856), Involving tenants in common; Illinois: Crow v. Mark, 52 III. 332 (1860), also involving tenants in common; Lee v. Abrams, 12 Ill. 111 (1850); North Carolina: Mc­pherson ic McPherson, 33 NC. 391, 53 Am.Doc. 416 (1850); Rhode Island: Knowles v. Harris, 5 11.1. 402, 73 Am.Dee. 77 (1858),
10. Conklin v. Bush, S Pa. 514 (1848). See, also, Scott, Cases on Trusts, 568, 571 (Cambridge, 1013); Ames, Lectures on Legal History, Lecture Xi, Ac­count, 116—121 (Cambridge 1913) Langdell, A Brief Survey of Equitable Jurisdiction, 85—89 (Cam­bridge. 1908); Id., 2 Harv.L.Rev. 242, 267 (1889); 3 Street, Foundations of Legal Liability, c. IX, The Action of Account, 99 (Northeort 1900).

The action will only lie where the amount



sought to be recovered is uncertain and un­liquidated.tt If the mutual debits and credits of the parties have been ascertained, or an account has been stated between them, As­sumpsit or Debt, and not Account, is the proper remedy to recover the definite balance due.12 In some cases Assumpsit or Covenant

may be Concurrent Remedies with this Form of Action; but Debt can never be so, for

account will never lie where the object of the suit is the recovery of a sum certain.
The Action of Account-Render differs from the other Common-Law Actions in the Mode of Procedure. Though it is Commenced like them, the Judgment is first rendered upon the liability to account, quod computet, which is an Interlocutory Judgment only.13 The Court thereupon appoints Auditors or Arbitrators, whose business it is to take and report the account between the parties, with the balance due, and upon their report the

Final Judgment is rendered. If the balance was found in favor of the defendant, no Judgment for it could be given him at Com­mon Law. In Pennsylvania the jury might

settle the accounts in the first instance, and then Final Judgment only was rendered; but, where this could not be done, the practice was as above indicated. In Illinois and some other states the Jury merely determined tha liability to account, and heard no evidence as to the state of the accounts; that being
11. EnglIsh: Foster v. Alinnson, 2 TB, 479, 100 Eng.

flop. 258 (1788); Pennsylvania: Andrewn v. Allen,

9 Serg. & It. (Pa.) 241 (1823): Crousillat ‘cc McCall, 5.

Bin. (Pa.) 433 (1813); Grata v. Phillips, 5 Bin. (Pa.)

568 (1813); Vermont: Morgan v. Adams, 37 Vt. 233

(1864).
12. Langilell, Equitable Jurisdiction, c. IV, 75—SC (Cambridge, 1008).


13. IllInois: Leinhart v. Kirkwood, 130 Ill.App. 308-(1906); North Carolina: McPherson v. Mcpherson, 33 N.C. 391, 53 Am.Dcc. 416 (1850), which involved two Judgments—lost, that plaintiff and defendá mit account together; and, second., that plaintiff or deS­feudant recover the balance found to be tine.

313


left to the Auditors appointed to take the account and ascertain the balance due.’4
ACCOUNT—DISTINGUISHED PROM AND

CONCURRENT WITH OTHER ACTIONS


155. The Action of Account should be dis­tinguished from an Action for an Accounting, which was Equitable in character, and from the Action on an Account, which might be in Debt or Indebitatus Assurnpsit. It is concurrent in certain situations with Debt, Detinue, Indebita­tus Assumpsit, and a Bill for an Equitable Ac­counting.
THE Action of Account, at Common Law, was available against a Bailiff, Guardian or Receiver, or any person who received money or other goods to be used for an­other’s benefit and in due time accounted for.15 As the Action of Debt finally develop­ed, it became a Concurrent Remedy with Account, and as Indebitatus Assumpsit was a Substitute for Debt in the Field of Debt on Simple Contract, it also became a Con-
14- Per a ease in which the procedure in an Action of Account is shown in all its technicality, see Willson v. Willson, 5 NIL. 791 (1820), in wluch Kilpatriek, C. J., observes: “This is a Writ of Error to Gloucester Pleas, In an Action of Account. This Form of Action, is, in itself, very difficult, dilatory, and expensive; it has long since fallen into disuse, in a great measure, in England; amid in New Jer­sey, I have never known, or heard of, more than two or three eases, either in my own time, or before; and I doubt whether even they were carried through

to Finni Judgmeat. Hence, we have but few prece­dents to guide us in a suit of this kind, and these few, of pretty ancient date; not very intelligible, nnd still less applicable, at this day. In most in-stances, therefore, the Action on the Case, which is simple, easy and well understood, has taken the place of this, in the Common Law Courts, and when

that did not afford a complete remedy, resort has been had to Equity, where confidential concerns and trusts of this kind, are more properly cognEzable. Still, however, like all other actions, It is open to all; and In some cases, where the expense of a Court of Chancery would be too heavy for the sub­ject-matter, as It must be confessed, under Its pres­ent establishment, it frequently woul4 be, It may, also be necessary.”

current Remedy with Account.1° And in the field of Bailments Detinue and Account be­came Concurrent Remedies for the Bailor.


To avoid the delay incident to the Action of Account and to keep the business of ac­counting in mercantile matters within the jurisdiction of the Common Law Courts, where there was an express promise to ac­count, an Action of Trespass on the Case on promises, for the refusal to account, was sanctioned.17 And, as a matter of principle it was urged that Case would also lie where the obligation to account was raised by oper­ation of law.18 Martin states that it has been doubted whether the law raises an implied promise on the part of an agent or factor to account,’° but feels there is no sufficient rea­son against it.20
When the action fell into disuse, its func­tion was largely taken over by the Equitable Bill for an Accounting, the Court of Equity affording a more flexible machinery for the handling of Complicated accounts, in the Form of Discovery before a Master, who possessed power to examine the Witnesses under Oath, to compel the production of books and documents, to pass upon disputed
1~- See article by Langdell, A Brief Survey of Equity Jurisdiction, 2 Harv.L.Eev. 75, 57 (18%).

It was not until the Seventeenth Century, that Debt was allowed as an alternative to Account. Harris V. de Borvoir, Cro.Jae. 687, 79 Eng.Bep. 596 (1623).


And on the distinction between Account and Indebita­tus Assumpsit, see, 3 Street, Foundations of Legal Liability, c. IX, The Action of Account, 105 (North-port 1006).
17. English: Wilkin v. Wilkin, 1 Salk. 9, 91 Eug.Rep.

8 (1689); Spurraway v. Rogers, 12 Mod. 518, 88

Eng.Rep. 1489 (1700), with which compare Owston v.

Ogle, IS East. 538, 104 Eng,Itep. 656 (1811); Penn­sylvania: Schee v. Hassinger, 2 Bin. (Pa.) 330

(1810),
1L See, Cliitty, Treatise on Plending and Parties to Actions, with Precedents and Forms, c. I, 135 (16th Am. ed. by Perkins, Springfield 1876).
19. Sebec v. Hassinger, 2 Bin. (Pa.) 325 (1810).
20. Martin, Civil Procednre at Common Law, c. II, Art. IV, Account 64 (St Paul, 1905).

Sec. 155 - ACTION OF ACCOUNT

3 Street, Foundations of Legal Liability, c. IX,

The Action of Account, 100 (Northport, 1906).



OFFENSIVE PLEADINGS Cli. 15

items, and to state the account.21 Such find­ings were however, subject to revision by the Chancellor. The Equitable Bill for an Accounting, of course, is not to be confused with the Action of Account, which was Legal and not Equitable, and which was the Father of the Common Court in Indebitatus Assuinp­sit Known as the Account Stated-22


21. See Seeley v, Dunlop, 157 Md. 378, 140 A. 271 (1929), which involved a partnership account, and in which Parke, S. said: “In an Action of Account, there was first the preliminary Judgment of QUo& computet, a commission of audita was issued refer­ring the account to auditors, who would go over the account item by item, and examine the parties, but had no authority to pass upon controverted Items so as to carry on a continuous investigation, but were obliged to refer each disputed item to the Court or a Juvy as a distinct Issue of Law or Fact; and If, after the investigation had been made and the ac­count taken, it was found that the balance was against the plaintiff, no Judgmcnt therefor could be entered and no payment could be enforced. 1315-pham’s Principles of Equity (8th ed.) § 481; 1 Har­ris’ Entries (1801) pp. 108—111; lb., vol. II, pp. 73— 74, 181—182; 661—062; 301—304; Wisner v. Wilhelm, 48 Md. i. This incomplete and unsatisfactory Com­mon-law Remedy has fallen Into almost complete disuse because of the superiority of the relief af­forded in Equity, where discovery may be had and the cause referred to a master, who has power to examine the parties and their witnesses under Oath; to compel the production of books and docu­ments; to pass upon the disputed items, and to state the account, subject, however, in all particu­lars to the revision or other action of the chancel­lor upon the coming of the report. Bispham’s Prin­ciples of Equity (8th Ed.) if 482, 484; Adams’ Equi­ty, 225; Miller’s Equity, § 225 and notes; §~ 228, 311, 535, 555, 550!’
22. “There are three Rinds of actions which are rec­ognized under proper circumstances as remedies for determination of accounts between parties:

First: Action of Account. This Is a Common-Law Action by means of which persons who are under a legal duty to account for property or money of an­other were compelled to render such account. 1 C. J. 602, ~ 11. The petition in an Action of Account is required to set out a relationship of the parties and a state of facts that would entitle the claimant to an accounting; allege that no accounting had been made; and pray for a money judgment but need not ask that an account be taken. The Judg­ments which are Incident to such an action are two Judgment that defendant do account and Judgment

after the account for the balance found clue, Hughes

FORM OF DECLARATION IN ACCOUNT


156. The Declaration in Account was highly technical and cumbersome in character, as will appear from the Form of the Declaration as set

out below.

DECLARATION ON ACCOUNT

rN THE COMMON PLEAS.

Term, Will, IV.

London, (to wit). AS. was summoned to

answer W~S. in a plea that she render to the said W.S. a reasonable account for the time during which she was bailiff to the said WS. in the parish of [St. Botoiph, Bishopsgate Street,] in the [city of London]. And thereupon the said W,S. by his attorney saith, that whereas, heretofore, to wit, on the day of , in the year of our Lord , and from thence for a long space of time, to wit, hitherto the said plaintiff was lawfully possessed of one undivided moiety or half part, the whole in moieties to be divided [or if the plaintiff


v. Woosley, 15 Mo. 492; Sandwich Mtg. Co. v. Bogie, 317 Mo. 972, 298 s.w. so.

“Second: Action for an Accounting. This is an Ac­tion in Equity. The best considered authorities put Equitable Jurisdiction for an Accounting upon three grounds, to wit: The need of a discovery, the com­plicated character of the accounts, and the exist­ence of a fiduciary or trust relation. The relief which is given in this action is an Accounting and a Judgment for the balance found due o,a

the account. 1 C.J. 613, § 56. The basis of Equity Jurisdiction in Accounting is the inadequacy of a Legal Remedy. I C.J. 615, § 58; Johnston v- Starr Bucket Pump Co., 274 Mo. 414, 202 SW. 1143 (1918); Ray v. Bayer Steam Soot Blower Co. (MoApp.) 282 SW. 176; Palmer v. Marshall (Mo.App.) 24 SW. (2d) 229. It is a remedy particularly applica­ble to mutual and complicated accounts. 1 CS, 618, § 63. And cases where a confidential or fidu­ciary relationship exists. I C.J. 621, § 68.

Third: Action on Account. This is an Action of As­sumpsit or Debt which is for recovery of money only for services performed, property sold and de­livered, money loaned, or damages for the nonper­formance of Simple Contracts, Express or Implied, when the rights of the parties will be adequately conserved by the payment and receipt of mOney. I CL 648, §~ 142 to 146; 5 C.J. 1381, § 6.” Hyde, C. in Dahlberg v. Fisse, 328 Mo. 213, 220, 40 S.W.2d 606, 000 (1931),



314

Sec. 158

ACTION OF ACCOUNT

315


was seized in fee, say, “the said plaintiff was seized in his demesne as of fee, of and in one undivided, &c.”) of and in a certain mes­suage, with the appurtenances, situate, &c., for the rest and residue of a certain term, to wit, the term of six years, commencing, &c. with the said defendant, during all that time held the said tenement, with the ap­purtenances, together with the said plaintiff, as tenants in common; [or if the seisin was in fee, say, “and the said defendant and divers other persons whose names are to the said plaintiff unknown, during all that time held the said tenements with the appurte­nances, together with the said plaintiff, as tenants in common; “1 and the said defend­ant had also, during all that time, the care and management of the whole of the said premises with the appurtenances, to receive and take the rents, issues, and profits there­of, as bailiff of the said plaintiff, of what she received more than her just share and proportion thereof to render a reasonable account thereof to the said plaintiff and his said share thereof, when the said defendant should be thereunto afterwards requested, according to the form of the statute, &c., and although the said defendant during the time aforesaid, at &c., (venue) aforesaid, received more than her just share and pro­portion of the rents, issues, and profits of the said tenements with the appurtenances, and the said plaintiff’s share thereof, that is to say the whole of the rents, issues and prof­its of the said tenements with the appurte­nances; yet the said defendant, aithough she was afterwards, to wit, on, &c., at, &c. (ven­ue) aforesaid, requested by the said plaintiff so to do, hath not yet rendered a reasonable account to the said plaintiff of the said rents, issues, and profits so received as aforesaid or either of them, or any part thereof, or of the said share of the said plaintiff, or any part thereof, but hath hitherto wholly neglected and refused so to do contrary to the form of the statute In that case made

and provided, to wit, at, &c. (venue), afore­said; wherefore the said plaintiff says he is injured, and hath sustained damage to the amount of £______ and therefore he brings his suit, &c.


MARTIN, Civil Procedure at Common Law, 368 (St. Paul, 1905),
DECLARATION IN ACCOUNT OR ACCOUNT RENDER—ESSENTIAL ALLEGATIONS:

(1) IN GENERAL
157. The Essential Allegations of the Dec­laration in Account or Account Render are:

(I) A statement of the facts showing a legal relation between plaintiff and defendant which gives rise to the tight to an accounting.



(II) The refusal of defendant to account. (III) The Damages.
DECLARATION IN ACCOUNT OR ACCOUNT

RENDER—ESSENTIAL ALLEGATIONS:

(2) A STATEMENT OF THE FACTS



SHOWING A LEGAL RELATION BE­TWEEN PLAINTIFF AND DEFENDANT

WHICH GIVES RISE TO THE RIGHT TO

AN ACCOUNTING
158. The Declaration must allege privity between the plaintiff and defendant, the plain­tiff’s property, the manner in which the defend­ant received it, and the special character in which the defendant is charged. If several are macic defendants, the averment must he of a joint liability only. In some cases it must be shown from whose hands the defendant received the money.
AS the object of the Action of Account or Account-Render is to ascertain the amount of the plaintiff’s claim, it is unnecessary that the sum should be accurately stated; and it is sufficient, as to time, that the defendant be charged as receiving the money or prop­erty between certain dates. To sustain the action privity or relationship between the parties is essential, and such privity must therefore be alleged.~3 And the particular
23. The meaning of the term “privity” as givea in tin, authorities is somewhat confusing, and the division of it into several classes is not much better. Prob­ably the best definition Is that It Is a fiduciary ac-

316


OFFENSIVE PLEADINGS

Cli. 15

character or capacity in which the defendant acted and is chargeable must also be stated, as the proof must, in every case, correspond with the plaintiff’s Allegations.24 It seems necessary, where the action is against a re­ceiver of money, to show from whom he received it, in order that he may be pre­pared to meet the charge against him; 25 and in Actions Between Tenants in Common, under the Statute of Anne,2° as well as in actions between partners, it is necessary to aver that the money was received for the common benefit of the plaintiff and de­fendant, and that the defendant has received more than his share of the profits?7

DECLARATION IN ACCOUNT OR ACCOUNT

RENDER—ESSENTIAL ALLEGATIONS:

(3) THE REFUSAL TO ACCOUNT OR

TIlE BREACH


159. The Declaration must also allege a neglect or refusal of the defendant to account. A demand is unnecessary.
FROM what has been stated, it is obvious that the breach or infraction of the plaintiff’s right here is the neglect or refusal of the defendant to account as to the matters in question, and the Allegation need be only a formal one to that effect. A special demand
lationship or connection growing out of the charge of another’s property, as, where A delivers B mon­ey to pay C, and C has an Action of Account against B. So, If B collects money as ngent of C, he is accountable to him.
The relationship subsisting between the immediate parties to a contract Is called “privity of contract.”
24. Connecticut: Barnum v. Landon, 25 Conn. 187

(1850); Missouri: Hughes v. Woosley, 15 Mo. 492

(1852); Pennsylvania: Wright v. Guy, 10 5cr. & It.

(Pa.) 227 (1823); Vermont: Qearncs v. Irving, Si

Vt. 604 (1850).

25. MeMurray v. Rawson, 3 Hill (N.Y.) 59 (1842)
26. See, 4 Anne, c. 16, § 27, 11 Statutes at Large 101,

(1705), whIch has been generally adopted into the

common Law of this country, or followed by the

Enactment of similar Statutes here. Cheney v.

RIcks, 187 Ill. 171, 58 N.E. 284 (1900).
27. GriffIth v. WillIns, 3 BIn, (Pa.) 317 (1811).

before suit brought is not necessary, and therefore need not be averred.28

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