Baxter and Another v Hozter
| Jurisdiction | England & Wales |
| Judgment Date | 31 January 1839 |
| Date | 31 January 1839 |
| Court | Court of Common Pleas |
English Reports Citation: 132 E.R. 1115
IN THE COURT OF COMMON PLEAS
S. C. 7 Scott, 233; 1 Arn. 519; 8 L. J. C. P. 169.
[288] baxter and another v. hozibr. Jan. 31, 1839. [S. C. 7 Scott, 233; 1 Arn. 519; 8 L. J. C. P. 169.] A plea of plene computavit, in an action of account against a tenant in common and bailiff, is not satisfied by Defendant's shewing that he rendered an account of the produce of the sales of goods belonging to himself and Plaintiff, together with an account of the charges attending the sales : he ought also to render an account of the loss, if any, accruing from the sales; or an account which shews an agreed balance between Plaintiff and Defendant. The following case was submitted for the opinion of this Court:- This was an action of account, brought by the Plaintiffs as the surviving partners of J. Collier and J. Baxter deceased; and the declaration stated, that, on the 9th of 1116 BAXTER V. HOZIEK 5 BING. (N. C.) 289. October 1837, the Plaintiffs, together with John Collier and John Baxter, since deceased, and the Defendant, were the owners of divers goods and chattels, to wit, fifteen cases of linens, called platillas, containing 15,870 yards of the said linens, of great value, to wit of the value of 5001., as tenants in common thereof ; which goods and chattels, so being the property of the Plaintiffs and the said Collier, Baxter, and the Defendant, were in the care and management of the Defendant, and were held by him as the owner of the one undivided moiety thereof, and as the bailiff of the Plaintiffs and J. Collier and J. Baxter of the other undivided moiety, to be merchandised and made profit of for the Plaintiffs and J. Collier and J. Baxter, or the survivors of them and the Defendant, according to their respective interests; and the Defendant was thereupon to render a reasonable account thereof to the Plaintiffs and J. Collier and J. Baxter, or the survivors of them, when he should be thereto requested : but although the Defendant afterwards, to wit, on, &c., in the lifetime of J. Collier and J. Baxter, sold and disposed of the same for and on account of the Defendant and the Plaintiffs and of J. Collier and J. Baxter; and although the Plaintiffs and J. Collier and J. Baxter, in their lifetime, after-[289]-wards, to wit, on, &c., requested the Defendant to render a reasonable account of the goods and merchandises, and of the proceeds and profits thereof; and the Defendant was afterwards, and after the death of J. Collier and J. Baxter, to wit, on, &c., requested by the Plaintiffs so to do, yet the Defendant had not rendered the said reasonable account of the goods and merchandises, or of the proceeds and profits thereof, either to the Plaintiffs and J. Collier and J. Baxter, or any of them, in the lifetime of J. Collier and J. Baxter, or to the Plaintiffs or either of them, since the death of J. Collier and J. Baxter, but had hitherto wholly neglected and refused so to do, contrary to the form of the statute in such case made and provided. Second count, for another consignment: (in the same terms) : so also a third and fourth counts, for other and different consignments; and on these two last the Defendant allowed judgment to go by default. The Defendant, as to the two first counts, pleaded, first, that the Plaintiffs, together with J. Collier and J. Baxter deceased, and the Defendant, were never owners of the f oods and chattels in those counts mentioned, or of any part thereof, in manner and rm as the Plaintiffs had alleged. Secondly, That the said goods and chattels in those counts mentioned were not nor was any part of those goods and chattels ever in the care and management of or held by him, the Defendant, as the owner of the one undivided moiety thereof, and as the bailiff of the Plaintiffs and J. Collier and J. Baxter deceased, of the other undivided moiety thereof, in manner and form as the Plaintiffs had alleged. Thirdly, That he did not sell or dispose of the said goods and chattels in those counts mentioned, or any part thereof, in manner and form as was alleged in the said two first counts. Fourthly, That long before [290] the commencement of this action, and after the said selling and disposing of the goods and chattels in those counts respectively mentioned, and in the lifetime of J. Collier and J. Baxter deceased, the Defendant did render to the Plaintiffs and J. Collier and J. Baxter deceased, a reasonable account of the said goods and merchandises in those counts mentioned, and of the proceeds and profits thereof. And, fifthly, A similar account rendered to the Plaintiffs before the commencement of the action. At the trial of the cause a verdict was entered for the Plaintiffs on all the issues, subject to the award of a barrister, who was by the order of reference empowered to direct that a verdict should be' entered for the Plaintiffs or the Defendant, and such judgment thereon for either of the parties as he should think proper; and to whom the cause and all matters in difference between the parties were thereby referred ; and who was to raise upon the face of his award any point or points of law, if any should occur, for the opinion of the Court. The arbitrator found, upon the first issue,-that the Plaintiffs, with J. Collier and J. Baxter, both deceased, and the Defendant, were owners of the said goods and...
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Forster v Forster
...showing an agreed balance due by defendant. Lockey v. Lockey, Ch. Prec. 588; Hickman v. Upsall, 4 Ch. Div. 144; and Baxter Hozier, 5 Bing. N. C. 288; discussed and applied. Action for an account of the rents and profits of the lands of Normansgrove, in the County of Galway, and of the lands......