Page:Harvard Law Review Volume 2.djvu/281

 BQUITT JURISDICTION. 263

either become the banker's own money or it must be a special deposit in his hands ; and in neither case would the banker be accountable for the money, for in the one case he would be a mere debtor, and in the other he would be a mere bailee.

Co-owners of property as such are not accountable to each other. Before the statute of 4 Anne, c. 16, s. 27, if land, owned {e, g,) by two persons in equal but undivided shares, was under lease, and one of them received all the rent without the authority of the other, the other had no remedy at law, for want of privity ; and, though he had a remedy in equity, it was by a bill in the nature of a bill for partition, and not by a bill for an account. If he received the other's share of the rent by his authority and appoint- ment, he was bound to account for it to the latter as the latter's bailiff. If the property was not under lease, and one of the co- owners alone occupied it, he might occupy the other's share as his bailiff, or he might occupy alone, simply because the other did not occupy, or he might exclude the other. In the first of these cases, the one occupying was bound to account with the other as his bailiff for the profits of the other's half of the property.^ In the second case, the one occupying was not liable to the other in any way, either at law or in equity .^ He was not accountable to the other, not only for want of privity between them, but also be- cause he had received nothing belonging to the other. In the third case, the one occupying was liable to the other for a tort, but of course he was not accountable to him. In only two of the five cases just stated, therefore, could either an action of account or a bill for an account be maintained before the statute. In which of the other three cases did the statute enable the action and the bill to be maintained f Only in the first of the five. Why in that ^ Because the only obstacle before the statute was want of privity, and that obstacle was removed by the statute.^ Why not in the last but one of the five ^ Because in that case there was an addi- tional obstacle which was not removed by the statute, namely, that the defendant had received nothing belonging to the plaintifiF, and

1 It is on this principle that the managing owner of a vessel (called the ship's husband) is accountable to his co-owners. Maclachlan, Merchant- Shipping (2ded.,) 175; Davis V, Johnston, 4 Sim. 539.

cept it were done by agreement or promise of account." Anon^ Gary (ed. of 1820), p. 29, June 8, 1602, 44 Eliz.
 * Two joint- tenants; the one takes the whole profits; no remedy for the other, ex>

s See Thomas v, Thomas, 5 Exch. 28.