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ceiver, it is necessary to set forth by whose hands the defendant received the money; but where he is charged as bailiff it is not necessary. It seems he may be charged in both capacities, in the same action.2 But where one tenant in common sues his co-tenant in account, charging him as bailiff under the statute of Anne, it must be alleged in the declaration, and of course be proved, that he lias received more than his share of the profits.3 And the receipt, by one co-tenant, of the whole profits is prima facie a receipt of more than his share, and will render him liablo to account to his companion as bailiff, though, on taking the account, it may turn out that he is a creditor. The pleas in bar appropriate to this action are, that he never was bailiff, or guardian, or receiver; or that he has fully accounted either to the

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1 Co. Lit. 172 a; Walker v. Holyday, 1 Com. 272; Bull. N. P. 127 ; Bishop v. Eagle, 11 Mod. 186 ; Jordan v. Wilkins, 2 Wash. C. C. 482. For, where the money was received of the plaintiff, the defendant might have waged his law. Hodsden v. Harridge, 2 Saund. 65. Nor is it necessary where the action is between merchants. Moore v. Wilson, 2 Chipm. 91.

2 Wells v. Soine, Cro. Car. 240 ; 1 Roll. Abr. 119, pl. 10 ; 1 Com. Dig. Accompt, E, 2. The declaration against a bailiff is as follows : plea of account; for that the said D. was bailiff to the plaintiff of one messuage, with the appurtenances in

from to - and during that time had the care and management thereof, and sufficient power to improve and demise the same, and to collect and receive the issues, rents, and profits of the said premises to the use of the plaintiff ; yet, though requested, the said D. hath never rendered to the plaintiff his reasonable account of said moneys, rents, and profits, nor of his doings in the premises, but refuses so to do." The form of charging one as receiver is thus : “For that the said D. was from

to the plaintiff's receiver, and as such had received of the moneys of the plaintiff by the hands of one E. dollars, and by the hands of one F. dollars, to render his reasonable account thereof on demand. Yet," &c.

3 Sturton v. Richardson, 13 M. & W. 17. Whether a special request and the lapse of reasonable time should be alleged, quære. Ibid. This provision of the statute of Anne (4 Anne, c. 16, § 27, allowing an action of account where one tenant in common has received more than his just share) applies only to cases where one tenant in common receives the money or something else from another person to which both co-tenants are entitled, simply by reason of their being tenants in common, and in proportion to their interest as such, and of which the one receives and keeps more than his just share according to that proportion. The statute, therefore, includes all cases where two are tenants of land leased to a third party at a rent payable to each, and where the one receives the whole, or more than his proportionate share according to his interest in the subject of the tenancy. There is no difficulty in ascertaining the share of each, and determining when one has received more than his just share ; and if he has, he becomes as such receiver, in that case, the bailiff of the other, and must account. But when we seek to extend the meaning of the statute beyond the ordinary meaning of its words, and to apply it to cases in which one has enjoyed more of the benefit of the subject, or made inore by its occupation than the other, we have insuperable difficulties to encounter. There are obviously many cases in which a ten. ant in common may occupy and enjoy the land or other subject of tenancy in common solely, and have all the advantage to be derived from it, and yet it would be most un. just to make him pay anything. And there are many cases where profits are made and are actually taken by one co-tenant, yet it is impossible to say that he has received more than comes to his just share. Examples of both classes of cases are given. See Henderson 6. Eason, 9 Eng. Law & Eq. 337.

4 Eason v. Henderson, 12 Ad. & El. n. s. 986 ; 13 Jur. 150.

plaintiff or before auditors; or that the money was delivered to him for a specific purpose, which has been accomplished. Whatever admits the defendant once liable to account, such as payment over by the plaintiff's order, &c., though it goes in discharge, should be pleaded before the auditors and not in bar of the action ; excepting the pleas of release, plene computavit, and the statute of limitations. (a)

§ 37. What evidence supports. In this case, as in other cases, the evidence on the part of the plaintiff must support the material averments in the declaration. There must be evidence of a privity, either by contract, express or implied, or by law; and if the defendant is charged as bailiff, or guardian, or receiver, or tenant in common, or joint tenant, he must be proved to have acted in the specific character charged; for the measure of their liability is different; tenants in common and joint tenants being answerable for what they have actually received, without deducting costs and expenses; receivers being charged in the same manner, but allowed costs and expenses in special cases in favor of trade; and guardians and bailiffs being held to account for what they might with proper diligence have received, deducting reasonable costs and expenses. The property in the money demanded or goods bailed must be precisely stated and proved as laid, it being a material allegation. If, therefore, the declaration

1 1 Com. Dig. Accompt, E, 3, 4, 5. In these cases, the form of pleading is : “That he never was bailiff of the premises, goods, and chattels aforesaid, to render an account thereof to the said plaintiff in manner and form” (&c.); or, " that he never was receiver of the moneys of the plaintiff in manner" (&c.); or, “that, after the time during which (&c.), to wit, on he fully accounted with the plaintiff of and concerning the said premises, rents (&c.), for the time he was so bailiff as aforesaid ;' or, “of and concerning the moneys so hy him received, as aforesaid ; or, “fully accounted before A and B, auditors assigned by the court here to audit the account aforesaid," &c. Story's Pleadings, 71, 72; 3 Chitty's Pl. 1197–1289.

2 1 Com. Dig. Accompt, E, 6 ; Godfrey v. Saunders, 3 Wils. 94 ; Bredin v. Divin, 2 Watts, 15.

3 An I 0 U is evidence of an account stated between the parties. Fessenmayer v. Adcock, 16 M. & W. 449.

4 King of France v. Morris, cited 3 Yeates, 251 ; Co. Lit. 172 a.

5 1 Selw. N. P. 1-3 ; Co. Lit. 172 a; Sargent v. Parsons, 12 Mass. 149 ; Griffith v. Willing, 3 Binn. 317 ; Wheeler v. Horne, Willes, 208 ; Jordan v. Wilkins, 2 Wash. C. C. 485 ; Stat. 4 & 5 Anne, c. 27 ; Irvine v. Hanlin, 10 S. & R. 221.

(a) And whatever constitutes a bar to make out a valid defence, but does not in. the action must be pleaded in bar before sist on a jury trial on those facts, and the interlocutory judgment to account; allows the case to be referred to an auditor such matter cannot be pleaded before to take the account, he waives the defence the auditor, c. g. Statute of Limitations. he has set up, and cannot insist on it after Closson v. Means, 40 Me. 337; Black v. the account has been taken. Protchett v. Nichols, 68 Me. 227. If the defendant, Schaefer, 11 Phila. (Pa.) 166. by his answer, sets up facts which would

is for the money of the plaintiff, and the proof is of money belonging to the plaintiff and others as partners, the declaration is not supported. And if there are several defendants, they must be proved to be jointly and not severally liable. A special demand to account is not necessary to be proved.3

§ 38. Pleas. If the plea is that the defendant accounted before two, it will be supported by evidence that he accounted before one of them only; for the accounting is the substance. In general, to support the plea of plene computavit, it is necessary for the defendant to show a balance, ascertained and agreed upon. But if the course of dealing is such as to call for daily accounts and payments by the defendant, as where the demand is against a servant for the proceeds of daily petty sales, of which it is not the course to take written vouchers, it will be presumed that the defendant has accounted; and the burden of proof will lie on the plaintiff to show that this ordinary course of dealing has been violated. If the contract was upon the consignment of goods to the defendant, that he should account for the sales and return the goods which should remain unsold, the plea of plene computavit will not be maintained by evidence of having accounted for the sales, unless it be also proved that the goods unsold have been returned. This plea, and that of ne unques bailiff, &c., may be pleaded together; and the plea does not in that case admit the liability of the defendant to account.8

§ 39. Judgment and reference. After a judgment quod computet, and a reference to auditors, all articles of account between the parties incurred since the commencement of the suit, are to be included by the auditors, and the whole is to be brought down to the time when they make an end of the account. But after such judgment, rendered upon confession against a receiver, if the auditors certify issues to be tried, the plaintiff, upon the trial of such issues, cannot give evidence of moneys received by the defendant during any other period than that described in the dec

1 Jordan v. Wilkins, 2 Wash. C. C. 482. 2 Whelen v. Watmough, 15 S. & R. 158. 3 Sturges v. Bush, 6 Day, 442.

4 Bull. N. P. 127. 6 Baxter v. Hozier, 5 Bing. N. C. 288. 6 Evans v. Birch, 3 Campb. 10.

7 Read v. Bertrand, 4 Wash. 556. 8 Whelen v. Watmough, 15 S. & R. 158.

9 Robinson v. Bland, 2 Burr. 1086 ; Couscher v. Toulam, 4 Wash. 442. The report of the auditor will not be set aside on the ground of error in the account, except on very clear and satisfactory proof of the errors complained of. Stehman's Appeal, 5 Barr, 413. VOL. II.

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laration. The judgment quod computet, however, does not conclude the defendant as to the precise sums or times mentioned in the declaration ; but the account is to be taken according to the truth of the matter, without regard to the verdict.2

1 Sweigart v. Lowmarter, 14 S. & R. 200. 2 Newbold v. Sims, 2 s. & R. 317 ; James v. Brown, 1 Dall. 339 ; Sturges v. Bush, 5 Day, 452.

ADULTERY.

$ 40. Adultery, how proved. The proof of this crime is the same, whether the issue arises in an indictment, a libel for divorce, or an action on the case. (a) The nature of the evidence which is considered sufficient to establish the charge before any tribunal has been clearly expounded by Lord Stowell, and is best stated in his own language. “It is a fundamental rule,” he observes, “ that it is not necessary to prove the direct fact of adultery; because if it were otherwise, there is not one case in a hundred in which that proof would be attainable; it is very rarely, indeed, that the parties are surprised in the direct fact of adultery. In every case, almost, the fact is inferred from circumstances, that lead to it by fair inference as a necessary conclusion ; and unless this were the case, and unless this were so held, no protection whatever could be given to marital rights. What are the circumstances which lead to such a conclusion cannot be laid down universally, though many of them, of a more obvious nature and of more frequent occurrence, are to be found in the ancient books; at the same time, it is impossible to indicate them universally, because they may be infinitely diversified by the situation and character of the parties, by the state of general manners, and by many other incidental circumstances, apparently slight and delicate in themselves, but which may have most im

(@) This statement refers to the kind is not required to prove it beyond a reaof evidence by which the fact of adultery sonable doubt, as in an indictment for a is proved, for it is proved by the same criminal offence. Chestnut v. Chestnut, kind of evidence in all cases. In regard 88 Ill. 548. The rules governing the adto the quantity of evidence required, how- missibility of evidence, both oral and docuever, the rule differs where the issue is mentary, which is offered for the purpose raised on an indictment, from that where of proving the act of adultery are the same it arises in a libel for divorce, or an action in criminal as civil cases ; the difference on the case. On the trial of an indict- between the two classes of cases is in resment, the act of adultery must be estab. pect to the measure and weight of the evilished by proof beyond a reasonable doubt; dence addressed to the jury on the matwhile the rule as to the quantity of evi- ters on which they are to pass. On the dence required to prove the act of adultery question whether a document is admissible when it is relied on as a ground of divorce, as evidence to go to the jury in a prosecuor to support an action on the case, is that tion for adultery, the court determines it by the party relying on such act should prove the same rules as when the question is made it by a preponderance of the evidence. He in a civil case. State v. Potter, 52 Vt. 33.

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