M'Adam v. Orr

The opinion of the Court was delivered by

Sergeant, J.

— I perceive no reason why the plaintiff should not have been permitted to file an additional count charging the defendant as factor for the sums of money and rents and profits of the land received by him for the plaintiff, since it is only a change in the mode of charging the defendant, whilst the ground of action remains the same, that is to say, his liability to account to the plaintiff for the receipts of the income of the houses; and it therefore falls within the adjudged cases. But the argument of the defendant is, that such new count is incompatible with the first, and could not have been originally joined with it; because the first is by one tenant in common against another, under the Statute 3 and 4 Anne, which gives a new remedy, making the defendant liable differently, and authorizes the auditors to examine the parties on oath; whereas, at common law that could only be in one or two particular cases, according to Wheeler v. Horne, (Willes 210). But that case and Co. Lit. 172 a, and other authorities lay it down that at common law one tenant in common may bring account render against another as bailiff, where he is so expressly appointed, and here the narr. seems to be against the defendant as bailiff at common law, the statute not being referred to. Without, therefore, examining other questions as to joining a count on the statute with one at common law, or joining a count against an administrator of a deceased bailiff who was tenant in common, with a count against the administrator of a deceased individual bailiff, both of which seem to fall within statutory enactments, we think the amendment ought to have been allowed.

On the other point, I do not see how these parties could, on the evidence given, be considered tenants in common as to the middle lot or the houses thereon built. This lot belonged one half to the plaintiff and one half to the defendant. The plaintiff, on being appointed bailiff, held his half in his own right and the other in the defendant’s. The title to the houses followed that of the soil, with a power to Hall to hold till he was repaid his advances. But for the first reason, the judgment must be reversed.

Judgment reversed, and a venire facias de novo awarded.