Swift v. Raymond

The opinion of the court was delivered by Williams, C. J. This action was referred. The parties have treated the report, as the report of auditors, and not of referees. The rules, which govern the court in accepting or rejecting the reports of referees and auditors, are very different. It is not necessary, however, to advert to the distinction, as there appears to be no reason for disturbing the judgment of the county court, whether the report as considered as that of referees'or auditors. From the multitude of facts and statements, which are detailed in the report, a great part of which are wholly immaterial, and neither elucidate the case nor help to aright understanding of what is attempted to be putin controversy, it can be ascertained that the defendant has received nothing belonging to the plaintiff and that he has not been guilty of any neglect or mismanagement. It is true, a bailiff is accountable for what he might have realized if he had used reasonable care. But if the plaintiff expected to derive any benefit from this principle, the referees should [322] i have reported the want of reasonable care, and what might have been realized if the property had been properly managed. No such report is made, and neither the county court nor this court would have been at liberty to infer any other fact than those which are found by the referees. It is claimed, however, that the plaintiff is entitled to a judgment for the bill of cost in the suit against Dunton & Co. To this it is a sufficient answer, that if the defendant is accountable for the bill of cost, this is not the appropriate action to recover thereon. The defendant is here sued as the bailiff and receiver of the moneys of the plaintiff, and the plaintiff is not at liberty to recover, in this form of action, a claim existing on book, and for which the action on book account is the proper remedy. The referees and the county court decided correctly, that the defendant had not any moneys in his hands unaccounted for, for which he should account to the plaintiff. The judgment of the county court is affirmed.