should have charged him specially as tenant in common; the verdict must therefore be set aside. As no action lay between tenant in common, &c. at common law, it must be brought, if at all, upon the statute 4 Ann, c. 16. Now, though the statute gives such an action by one against the other as bailiff, yet it differs much from an action of account at common law, in which a bailiff was liable for what he might have received generally. Whereas a tenant in common, &c. by this act is (4 Anne, c. 16.) made answerable only for what he has received more than his just share and proportion; besides, at common law the auditors could not examine upon oath, as they may in the action given by the statute. Now as the judgment is the same in both actions, quod computet, these material differences will be lost, and the auditors not know how to proceed; it ought therefore to appear upon the face of the record; and the constant practice is to set forth that the parties are tenants in common, &c. and then to declare against defendant as bailiff to the plaintiff according to the statute. Nor can the want of this description of the relative situation of the parties be aided by entering a suggestion; nor would it be proper; for that the use of that is to bring matter upon the record which could not appear upon the pleadings. Verdict set aside with costs. See Co. Lit. 172, a; 4 & 5 Ann. c. 16; 1 Sel. N. P. 3. n. IV. OF PLEAS IN BAR TO THE ACCOUNT. 1. SOUTHCOT V. RIDER. M. T. 1661. K. B. T. Raym. 57. In an action of account against the defendant as receiver, he plead- When the plained that the 201. demanded by the plaintiff was delivered to him to tiff charges the pay over to such persons as A. B. and C. D. should think fit, and defendant as rethat they awarded that he should deliver it over to one H. &c.; abs. ceiver from such hoc, that he was his receiver. Verdict for the plaintiff and judgment time, the defenquod computet. a time to such a dant must an Per Cur. The plea is well enough, except with regard to the time; swer the whole for when a plaintiff charges a defendant, as receiver, from such a time precisely. time to such a time, he must answer the entire time precisely.Judgment must therefore be given for the plaintiff. See 1 Rol. Abr. 487. pl. 10; Weaks v. Peach, 1 Salk. 179; Market v. Johnson, 6 Salk. 180; Vincent v. Beston, 1 Ld. Raym. 716; Pein v. Henriques, 2 Ld. Raym. 841; 1 Chit. Pl. 511. 3d ed.; Stephens on Pl. 232. 2. TAYLOR AND ANOTHER, Churchwardens of Dowham, v. THEIR PREDECESSORS. T. T. 1669. K. B. 1 Mod. 65; S. C. 2 Keb. 675. 704; S.C. 1 Vent. 88; S. C. 1 Danv. 223. This was an action against churchwardens to compel them to ac- The defendant count for a bell; they pleaded in bar that the bell was not in their may plead any possession, as they had delivered it to a bell-founder, to be repaired, matter in bar and that it was still in his hands. Demurrer, that the plea was no bar to the action. Per Cur. This plea is good, for wherever the matter or cause of the account is taken off, the plea is good in bar. See 10 Mod. 22; 1 Roll. Abr. 118; 1 Stra. 680. which tends to show that be ought not to account. The time for which a defendant is charged in the declaration, as bailiff, or receiver, is not traversable. In account, as re ceiver of eighty pigs of lead, a plea that he did not receive them, without 3. BROWN V. JOHNSON. H. T. 1675-6. K. B. 2 Mod. 145. In an action of account, the plaintiff declared, that, from the 1st of March, 1669, to the 1st of May, 1674, the defendant was his bailiff and receiver. The defendant pleaded in bar, that, from the 1st day of March to the 1st day of May, he was not the plaintiff's bailiff or receiver, et hoc paratus est verificare. Demurrer to plea, that the defendant had improperly made the time parcel of the issue, which was merely inserted as a matter of form, and that he ought to have pleaded that he was not bailiff modo et forma. Per Cur. This plea is bad for the reasons assigned in the demurrer; the time should not have been made parcel of the issue. See Lane v. Alexander, Yelv. 122; Cro. Jac. 202; 1 Brownl. 140; Ra. Ent. 8. 19. f. pl. 1. fo. 20. pl. 6. f. 22. pl. 2. tit. "Accompt," 30. Ld. Raym. 85. 281; 10 Mod. 251; Stra. 21. 181. and ante 143. IV. It was then objected to the plea, that the plaintiff having charged the defendant as receiver of eighty pigs of lead, the defendant had only pleaded that he was not receiver thereof," without stating "of any part thereof." The Court admitted the validity of the objection, because he might retain seventy-nine and yet not eighty pigs of the metal; but to plead generally ne unques receptor is well enough, part thereof," is though it was urged, that if it had been found against him upon such an issue, that he had received any parcel of the lead, he would be obliged to account. saying "or any bad. Stating that the defendant was not receiver from a particular day, excludes the day. The defendant See 24 Hen. 4. pl. 21; 32 Hen. 6. pl. 33; 2 Roll. 3. 14; Fitz. "Accompt," 16; Cro. Eliz. 850; Ra. Ent. 18. 19. 20. It was argued, that the plaintiff having charged the defendant as his bailiff upon the 1st of March, and the defendant having pleaded that he was not his bailiff from the 1st of March, he here excluded the day; this defect the Court held to be fatal. See Co. Lit. 46; Comp. 417; 4 T. R. 660; 1 Doug. 53. n. 15. Comp. 417. 4. COCKET V. ROBERT. E. T. 1700. 6 P. C. Lutw. 47; S. C. Cro. Eliz. 82. The plaintiff declared that the defendant was the receiver of a may plead in bar certain sum of money due to him and his wife, and to render an acthat he never count thereof when required; the defendant pleaded that he never was receiver of the said sum, or any part thereof. Issue was taken upon this, and its validity was admitted. was receiver. In account against a man, as receiver by his own hands, the defendant may wage his law; otherwise if he Vet. Intr. 16; Ra. Ent. 17. 19. 21; 2 Rol. Ab. 683. f. pl. 1. V. WAGER OF LAW. 1. HODSDEN V. HARRIDGE. M. T. 1668. K. B. 2 Saund. 61 to 64; S. P. In this case it was said in argument, that where the plaintiff, in an acbe charged as retion of account, declares against the defendant on a receipt by his own ceiver by the hands, the defendant shall wage his law; but if the plaintiff declares on hands of another. a receipt by other hands, the defendant shall be ousted of his law, on account of the presumption of law that the country had notice of it. Recognized in i Com. Dig. Accompt, E. 5. And see 1 Com. Rep. 272; Willes, 208. 2. PAGE V. BARNS. T. T. 1723. K. B. 8 Mod. 303. An action of account was brought on the 4 & 5 Ann. c. 16. against Or be charged as the defendant as bailiff ad merchandizandum, the defendant waged bailiff ad merhis law; and upon demurrer it was objected, that wager of law would chandizandum. not lie in account against a bailiff ad merchandizandum; but that if it had been brought against a receiver, and the plaintiff had not shown by whose hands, in that case a wager of law might be sustained. Judgment for plaintiff. VI. OF THE JUDGMENT TO ACCOUNT, AND 1. BISHOP V. EAGLE. 1707. K. B. 11 Mod. 186; S. C. 10 Mod. 22. On a writ of account brought by the churchwardens of St. Bar- A writ of actholomew, in London, against the defendant, it was said by the count may be Court, upon a motion in arrest of judgment, that they might abate abated in part, the declaration in part for uncertainty, and give judgment quod com- quod computet and judgment putet for the residue. 2. HUGHES V. BURGESS. T. T. 1737. K. B. Ca. Temp. Hard. 394; S. C. Andr. 19. for the residue. The defendant pleaded that he had fully accounted; and issue being The judgment joined thereon, the jury found for the plaintiff, and assessed damages of quod compu and costs; and judgment was entered accordingly, and execution et* is essential issued. The Court, on motion, set aside the judgment and execu- though only intion, observing that the judgment was wrong, for it ought to have must be duly enbeen only a preliminary judgment to account; and they compared tered. the irregularity in this case to the irregularity of signing final before interlocutory judgment. See Cro. Eliz. 19; Winch. 5; Metcalfe's case, 11 Co. Rep. 38. a. 3. REEVES V. GIBSON. M. T. 1669. K. B. 1 Lev. 300. S. P. Lewis v. terlocutory, and In this case the plaintiff insisted upon special bail, because the After judgment defendant intended going beyond sea; but it was denied by the Court; for in account no special bail is to be found until judgment quod to account, special bail must be found. The following was the form of the judgment in the celebrated case of Godfrey v. Saunders, 3 Wils. 88. "Therefore it is considered that the said T. S. account with the said T. G. of the time aforesaid in which he and the said S. S. were the bailiffs of him the said T. G. and had the care and administration of the aforesaid goods and merchandizes, &c. to be merchandized and made profit of for the said T. G. and the said T. S. in mercy, because he hath not before accounted, &c." And see Co. Ent. 46. b; Ra. Ent. 17. VOL. I. L Or a writ of capias ad computandum may be issued to bring the defendant into court. Two of the prin cipal officers of the court appointed as auditors.* A rule for the auditors is ab computet; and in Noy. 28. it was said by all the prothonotaries of the Court of Common Pleas, that the defendant upon the first writ should not be held to special bail; yet in peculiar cases, by the discretion of the Court, he shall find bail. 4. CHESTER V. HUNT. M. T. 1739. Cited 1 Selw. 6. 5th ed. If the defendant, after the judgment to account, does not personally appear in court to give bail to account, there may issue a capias ad computandum for the purpose of bringing him into court. VII. OF THE APPOINTMENT AND AUTHORITY OF 1. SMITH V. SMITH. H. T. 1818. K. B. 2. Chit. Rep. 10. After judgment quod computet, a motion was made for the appointment of auditors. ment of auditors. The Court, after inspecting the precedents produced by its officers directed two of the principal officers to be auditors. 2. ARCAER V. PRITCHARD. M. T. 1823. K. B. 3 D. & R. 596. On an application being made to the Court to appoint auditors, a appointment of question arose whether the rule was only nisi, or absolute in the first instance. The Court, upon the authority of the preceding case of Smith v. Smith, were of opinion that it should be absolute in the first instance. solute in the first instance. The auditors, without application to the Court, may enlarge the time for investigating the account. + 3. WILLIAMS V. LEE. H. T. 1668. K. B. 1 Mod. 42. A motion was made for leave to enlarge the time for investigating the account before auditors. Per Cur. The power of giving further time is vested in the auditors; they are the proper judges whether the parties have been guilty of delay or not. If they find them remiss or negligent, the auditors must certify to the Court that they will not account. See 3 Bla. Com. 163; 1 Brownl. 24; F. N. B. 116; Co. Lit. 90; 2 Inst. 380; 4 Ann. c. 16. * In Godfrey v. Saunders, 3 Wils. 73. three prothonotaries of the Court of Common Pleas were appointed auditors, and the entry on the record was as follows. "And thereupon the said T. S. freely offered himself to account with the said J. G. for the goods and merchandizes aforesaid, whereupon by the consent of the said J. G. and T. S. W. M. Esq. L. J. Esq. and A. D. Esq. prothonotaries of the said court here, are by the said court here assigned auditors, to take and declare the said account between the said T. G. and T. S." 3 Wils. 88, 89. + By stat. 4 Ann. c. 16. § 27. the auditors are empowered to administer an oath, and examine the parties touching the matters in question; and, for the trouble in auditing and taking such account, shall have such allowance as the Court shall judge reasonable, to be paid by the party on whose side the balance of account shall be. VIII. OF THE PROCEEDINGS BEFORE THE AUDITORS. ANON. T. T. 1675. C. P. 2 Mod. 100. It was moved by the plaintiff in this case, that the plea put in Qu. if a plea before the auditors ought to have been verified by oath. before auditors But no opinion was delivered on this point, but the Chief Justice need be verified (Sir Francis North) said that the plaintiff ought to have required the by oath. plea upon oath, otherwise it was unnecessary. 2. BISHOP V. EAGLE. E. T. 1710. K. B. 10 Mod. 23. In an action of account by the present against the former church- The defendant wardens, they pleaded that the plaintiffs were not churchwardens; on in his plea bewhich issue was joined, and a verdict given for the plaintiffs, and judgment quod computent. fore auditors may admit the receipt of the money, and al The defendants before the auditors pleaded, that they received a certain sum of money as churchwardens through mistake, when lege that he none was really due to the parish; and perceiving their error, they paid it over to the rightful refunded the money to the rightful owner. To this plea the plaintiff's demurred. Per Cur. Admitting this to be a good plea before the auditors, it will be necessary for the defendants to plead such plea as shows them to be honest men; viz. that they not only received the money by mistake, but also that they repaid it. Whereas if it was taken the other way, and to be a good plea in bar, a receipt by mistake will be no receipt at all, and it will not be necessary to show the repayment, but only that the money did not belong to the parish, therefore we are inclined to support the defendants' plea as far as possible. Besides, had the defendants paid the money to the parish before the knowledge of the mistake, the parish would have been chargeable with the amount; repayment was therefore an act done in discharge of the parish, and consequently a proper plea before the auditors. See 11 Mod. 186. 3. GOSWELL V. DUNKLEY. H. T. 1738. K. B. 1 Stra. 680. owner.* The defendant pleaded that he carried the goods entrusted to him A discharge to by the plaintiff to P. B.; and in order to keep them safe till he had a a common inconvenient opportunity to sell them, put them into a warehouse, and tent is sufficient. that the warehouse was broken open by enemies, and that part of the goods were taken away and lost, and the other part had likewise been taken away; unless an Englishman had claimed them as his, and that the defendant was forced to come away before he met with the Englishman to obtain them again. Demurrer, and joinder in demurrer. It was objected that this was no discharge, and 1 Roll. Ab. 124. 125; Yelv. 202; 1 Bulst. 101; was cited for the property being delivered to the defendant under a particular and special trust, he could not defend himself against the plaintiff's demand, by showing that The defendant cannot, in this action, pay money into court. Per Willes, C. J. T. T. 27 Geo, 2. cited Buller N. P. 128. |