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Page:Harvard Law Review Volume 2.djvu/262

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244

HARVARD LA W RBVTBW.

account for or to render an account of. At common law there are only three classes of persons who can incur an obligation to account ; namely, guardians, bailiffs, and receivers ; and a guar- dian, a bailiff, or a receiver is a person who receives property belonging to another. As to a guardian or a receiver this is obvious ; and it is equally true as to a bailiff. Indeed, "bailiff" has the same derivation and the same meaning as ** bailee," each of them signifying a person to whom property is bailed or delivered.

If such be the rule at common law, of course the rule in equity must be the same in substance ; for it is the common law that creates the obligation, the enforcement of it being alone the func- tion of equity. It is not, indeed, necessary in equity to describe a defendant as a guardian, a bailiff, or a receiver, in order to maintain a bill against him for an account ; nor is it necessary to show that he is one of these rather than another ; but it is indis- pensable that he have in truth the qualities of one, of two, or of all three of these classes of persons.

The distinctions between a bailiff and a receiver are important. A receiver is one who receives money belonging to another for the sole purpose of keeping it safely and paying it over to its owner. If the thing received be anything else than money, the receiver is a bailiff ; and so he is, though the thing received be money, if he have any other duty to perform respecting it than that of keeping it safely and paying it over, — if, e.g.^ he be bound to employ it for the profit of its owner ; and hence the rule that a receiver ad merchandisandum is a bailiff.^ Moreover, whether a person be accountable for property as a bailiff or as a receiver depends upon the original receipt, and not upon the state of things existing at the time when the question arises. Therefore, one who has re- ceived property as a bailiff is still a bailiff, though the property have all been converted into money, and the only duty remaining be to pay the money over to its owner.^ In short, "once a bailiff, always a bailiff" is the rule.

The term "bailiff" is not in popular use in this country; and even in England its popular use, as applied to persons who are

  • 1 Rol. Abr^ Accompt (0),pl. 4, 5. " If a writ be against the defendant as receiver,

a declaration upon a receipt ad merchandisandum^ for which he is chargeable as bailiff, is not good." Com. Dig., Accompt (£. 2)« 

• I Rol. Abr., Accompt (F), pi. 2, 3; Bro. Abr., Accompt, pi. 53.