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Page:Harvard Law Review Volume 2.djvu/264

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246 ^^^ YARD LA W RB VIE W.

When the property consists of goods, a sale is the more common object of the defendant's employment ; when it consists of land, the more common object is the receipt of the rents and profits. When the object is a sale, the defendant is accountable for the corpus of the property received; when the object is the receipt of the rents and profits or other income, the defendant is accountable only for the latter. When the object is a sale, the only measure of the defendant's accountability is the property received by him ; when the object is the receipt of the rents and profits or other income, the defendant's accountability is measured by the length of time that his employment has continued, as well as by the property received by him.

If the property received consist of money, the defendant must not be bound to restore to the plaintiff the identical coin received by him.; for, if he is, he will be a mere bailee, e, g.^ if the money be sealed up in a bag.^ So he must not, as has been seen, have a right to appropriate the money received to his own use, for then he can be only a debtor. But he must receive the money either to k«ep for the plaintiff, or to employ for the plaintiff's benefit ; and yet his obligation must be capable of being discharged by re- turning to the plaintiff (not the identical money received, but) any money equal in amount to the sum received. For money cannot possibly be employed so as to yield a profit or income, without losing its identity ; and though it may be so kept as to preserve its identity, yet the duty of so keeping it will, as has been seen, make the keeper a mere bailee. Moreover, such a mode of keeping money is very unusual, and such a mode of keeping another person's money would presumptively be very improper, for the recognized mode of keeping money is to deposit it with a banker ; and yet by so depositing it its identity is lost, for the

^ '* If one receive to my use money sealed up in a hag, as my servant, account does not He against him." F. N. B. 116 Q, n. (d). " H;£40 is delivered to render account, account lies well; but if it is delivered to re-bail when defendant is required, account lies not, but detinue." Bro. Abr., Accompt, pi. 51. " If money be delivered to render an account, account lies; but if it was delivered to keep until the plaintiff shall require it, account doth not lie, but detinue." Brownl. 26. *' In account as receiver, it is a good plea in bar that the money was delivered to him to carry to London to a Lombard, to make exchange, and to receive letters of exchange, and to send them to plaintiff, which he had done accordingly. For this is equivalent to saying that he never was his receiver to render account; for this was delivered to him to exchange, and not to render ac- count.'* I Rol. Abr., Accompt (M), pi. 7. Compare i Rol. Abr., Accompt (N), pL 14. See, also, F. N. B. 119 D, n. (d).