Page:Harvard Law Review Volume 2.djvu/263

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under an obligation to account, is confined to persons who have charge of land belonging to others, and who are accountable for the rents and profits of such land.^ Still, in law, both in England and in this country, every factor or commission-merchant is a bailiff in respect to the goods consigned to him for sale.*

Secondly, the person seeking to impose the obligation (and whom we will call the plaintiff) must be the owner of the property in respect to which the obligation is sought to be imposed. In other words, ownership by tlie plaintiff must concur with possession by the defendant Until these two things co-exist, the obliga- tion to account cannot exist ; and when they cease to co-exist, the obligation to account will cease to exist. If, therefore, the property be received by the defendant under such circumstances that it be- comes his own the moment he receives it, though it belonged to the plaintiff up to that moment, no obligation to account will ever arise. Thus, when the defendant receives money belonging to the plaintiff, but receives it under such circumstances that he has a right to appropriate it to his own use, making himself a debtor to the plaintiff to the same amount, and the defendant exercises such right, the receipt of the money will create a debt, — not an obli- gation to account. So if the plaintiff's title to the property be transferred to the defendant, after the latter has received it and become accountable to the plaintiff for it, the defendant's account- ability for the property will from that moment cease. Thus, if the defendant sell property as the plaintiff's factor, receive the pro- ceeds of the sale and appropriate them to his own use, debiting himself with their amount, his accountability will thereupon cease, provided he had a right to do what he has done ; and he will thenceforth be a debtor only ; /. ^., he will be accountable up to the moment when the property became his, and from that moment he will cease to be accountable and will become a debtor.

Thirdly, the defendant must not receive the property as a mere bailee. If, therefore, the property consist of land or of goods, the defendant must receive it either for the purpose of converting it into money by sale, or for the purpose of employing it in such a way that it may yield a profit or income for the benefit of the owner.

^ And this popular meaning seems to have once been the legal meaning. See i Vin. Abr., Account (X),pl. x; Anon., Keilw. 114, pL 51.

< See Godfrey v. .Saunders, 3 Wilson, 73, where a factor was sued and declared against as a bailiff.