¶1The opinion of the court was delivered by
¶2No question is made but that the defendant was bailiff to the plaintiff, liable to account to the plaintiff. As bailiff, the defendant was liable for the “ profits which he hath raised or made, or might by his industry or care have reasonably raised or made,” out of the property of which he was bailiff. Co. Litt. Lib. 3, §259, note, p. 172. A bailiff is not liable to account in the action of account for the property he received, but which he has not turned into profits, unless he has so disposed of it, or appropriated it to his own use, that he has consumed or wasted it as if it were his own ; and that he has converted it to his own use so as to be liable for it in the action of trover, may not be a sufficient appropriation of it to make him liable in account.
¶3The sum of $20, received by defendant for churns sold, was profic, about which his accountability is not questioned.
¶4The five churns left by defendant with his brother-in-law for sale, were left there upon the defendant’s own motion, upon an arrangement between him and his brother-in-law, and a part of them appear to have been sold pursuant to that arrangement, but how many were sold, was .not shown to the auditor. The defendant, having disposed of these in this manner, should show how many were not sold, if there were any such. Not having done this, he should stand charged as if they were all found to be sold.
¶5The churn delivered Stevens for services, and the one delivered Smith to pay for storage, were appropriated for the common benefit of the parties, and the defendant should stand charged for one half of them. The one delivered Crane was appropriated for the defendant’s own advantage, and lost to the plaintiff, and the defendant should be charged with that. These items, together with $30 advanced by the plaintiff to the defendant, were reckoned by the auditor against the defendant.
¶6As to the seven churns left by defendant with Breed, and the twenty-six left with Smith, it does not appear that the defendant *416has made any profit from them, nor that he might by diligence or industry have made any, nor that he has either consumed, wasted, or disposed of them as his own, and he is not liable to be charged for them in this accounting. This appears to be according to the statement of the accounts made by the auditor.
¶7No special exception to the ruling of the auditor in admitting testimony, was filed in the county court, therefore, no question was raised upon that ruling that is revisable here.
¶8Judgment reversed, and judgment for the plaintiff on the report according to the report.'