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Page:Harvard Law Review Volume 2.djvu/268

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If A be accountable to B, and B be accountable to C, this does not make A accountable to C for want of privity. Therefore, if B be the bailiff or receiver of C, and A be the deputy of B, A will be accountable to B alone, and B will be accountable to C, just as if there were no deputy.^

The privity required by the common law to support an obliga- tion to account was so strictly a personal relation that neither the right created nor the duty imposed by the obligation could be transferred even by an act of law ; and hence, upon the death of the obligee, the obligation could not be enforced by his executor or administrator ; and upon the death of the obligor, the obligation could not be enforced against his executor or administrator. As to the executor or administrator of the obligee, this rule was ab- rogated by early statutes \^ but as to the executor or administrator of the obligor, it remained in force until the passage of the well- known act* for the amendment of the law in 1705. It seems, however, that equity would enforce such an obligation against the executor or administrator of the obligor even before the passage of that statute.*

It is worthy of observation that while the obligation to account is created by law, yet the privity without which such an obligation cannot exist is, as a rule, created by the parties to the obligation. There are, however, exceptions to that rule ; for, in the case of guardians, the privity is created by law,^ and in one class of cases it is created by the statute just referred to ; namely, where one of two joint-tenants, or tenants in common, receives "more than comes to his just share or proportion."

Such then being the facts from which the law will raise an obli- gation to account, the next question is. How can such an obligation be enforced, or what is the remedy upon such an obligation? It

  • F. N. B. 119 B; I Rol. Abr., Accompt (E),pl. 4; The Queen and Painter's Case, 4

L.eon. 32; s. c, nom. Sir W. Pelham's Case, 4 Leon. 114.

« Wcstm. 2 (13 Ed. I.), c. 23; 25 Ed. III., sUt. 5, c. 5; 31 Ed. III., stat. i, c. 11,

  • 4 Anne, c. 16, s. 27.

^ G>. Litt 90 b, n. 5 (by Hargrave); Lee v. Bowler, Cas. /. Finch, 125; Holstcomb V. Rivers, I Ch. Cas. 127, i Eq. Cas. Abr. 5; Burgh v, Weotworth, Cary (ed. of 1650), 54.

  • *' To maintain an action of account, there must be either a privity in deed by the

consent of the party, for against a disseisor, or other wrongdoer, no account doth lie; or a privity in law, ex provUione UgiSy made by the law, as against a guardian, etc." Co. Litt. 172 a.