he had lodged them in a warehouse, which was committing them to the care of a third person, in which case he would be answerable for the loss. Per Cur. This is prima facie a good account; if the warehouse was not a place of safe custody, that should have been replied; a robbery there is the same as if from his own person; for a bailiff ad merchandizandum is not obliged to keep the goods always about him. Judgment for defendant. 4. GODFREY V. SAUNDERS. E. T. 1770. C. P. 3 Wils. 94. The plaintiff being a merchant in L. and possessed of a considerable quantity of coral beads, shipped them on board vessels employed by the East India Company to be exported from England to Fort Saint George; by the usage of the trade every person exporting coral beads from England to Fort Saint George is obliged to make the returns for the same in diamonds, and to consign them to the governor of that fort for the time being, and to any other person the exporter shall think fit to intrust on his behalf. The defendant Saunders being governor, the plaintiff consigned his coral beads to him and S. S. to be by them received and disposed of, for the best advantage, at Fort Saint George, and to send to him the account of the sales, and to make him returns in diamonds best adapted for the market at L. The plaintiff in a writ of account declared that the defendant and S. S. from the 1st day of June, 1754, until the 1st day of May, 1755, were the bailiffs of the plaintiff at London, and during that time had the care and administration of divers goods of the plaintiff, viz. twelve chests of coral beads, containing (to wit) 3000 pounds weight (to wit) of the value of 12,000l. to be merchandized and made profit of for the plaintiff, when they T. S. and S. S. should be thereto required. Yet T. S. and S. S. in the life-time of S. S., or T. S. since the death of S. S., have not, nor hath either of them, rendered an account of the same to the plaintiff; but both of them have refused, and the defendant Saunders still doth refuse, so to do, to the plaintiff's damage of 12,000l. The defendant pleaded several pleas in bar to the action; and upon the trial, the jury found for the plaintiff that the defendant Saunders and S S. were the bailiffs of the plaintiff, and had the care and administration of the goods and merchandize of the plaintiff in the declaration mentioned, to be merchandized and made profit of for him, and to render account when they should be thereto required; that all concern of the defendants as to, and in the care, trust, and management of the said goods and merchandizes, or the produce thereof, or the returns thereof to be made in diamonds to the plaintiff, did not cease, nor was at an end, as the defendant in pleading had alleged, i. e. when defendant ceased to be governor of Fort Saint George. The defendant, upon this finding, was adjudged to account, and auditors duly assigned. Before the auditors defendant Saunders pleaded as to the goods and merchandizes whereof he is adjudged to render account to the plaintiff, for the time in which he the defendant and S. S. were bailiffs of the plaintiff, he the defendant prays an allowance of all the profit and produce of the said goods and merchandizes, and says he ought to be discharged thereof, because he says that before and during part of the time in which he had been bailiff for the plaintiff, the defendant was governor of Fort Saint George, and S. S. during all that time was a merchant factor, a correspondent of the plaintiff, and well skilled in the trade; and, further, that according to the usage and custom of the trade, and the rules and orders of the E. I: Company, still in force, and observed by them, every person exporting coral beads to Fort Saint George ought to make the returns in diamonds, and to consign the coral beads to the governor of the fort, and to any other person the exporter shall think fit, and that plaintiff exported 2311 lbs. 10 oz. 13 dwts. and 18 grains of coral beads, and consigned the same to defendant and Salomons, which were received by them both; and that on 13th Oct. 1754, they sold part thereof for 5385l. 4s. Oąd.; and on the 13th Jan. 1755, they sold the residue for 4175l. 8s. 64d.; and that S. sent an account thereof to the plaintiff'; and that the defendant, on the 14th Jan. 1755, quitted the East Indies and all his concerns there, and returned to England, where he has ever since resided; and that when he left the East Indies, he, with the consent of the plaintiff, delivered over to S. the whole money and produce then received, and all the securities for the further produce to be received for the said coral beads, to make returns thereof in diamonds to the plaintiff'; and this defendant is ready to verify; wherefore he prays allowance of all the profit and produce of the said goods and merchandizes, and that he may be wholly discharged thereof. Demurrer to this plea. The Court on these pleadings propounded the following general principles: That whatever matter can be pleaded in bar to the action must Matter pleadabe so pleaded; and whatever matter may be pleaded in bar, cannot ble in bar cannot be pleaded beafterwards be pleaded before auditors; the reason of this rule is to fore the auditors, avoid unnecessary trouble and expense to the litigating parties, which would be created by permitting the party to lie by and" plead before auditors what you might have pleaded in bar." tavit. That if the party is once chargeable and accountable, he cannot Except in the plead in bar, but must plead before the auditors, except in the case of case of a release a release or plene computavit.* These exceptions are admitted or plene compubecause a plea of release, or of having fully accounted, are total extinctions of the right of action, of which the Court is to judge; and even in these two cases, they must be pleaded specially, and cannot be given in evidence on the plea of ne unques receiver. That nothing can be pleaded before auditors contrary to what has Nothing can be been before pleaded, and found by verdict; because it would introduce pleaded before either contrary verdicts, which would perplex the Court; or two auditors contrary to the previous verdicts of identically the same kind, which would be nugatory an finding of the absurd. jury. That if a defendant has paid over as a trustee, he has executed his trust; and then it is a bar to the action; he never was accountable. Or it may be pleaded before the auditors, that the defendant, by the The defendant command of the plaintiffs, delivered over to a stranger the effects, may plead that because such a delivery is tantamount, in contemplation of law, to be delivered over accounting with the plaintiff himself.+ When this course is pursued, and the matter pleaded in discharge is denied by the plaintiff, so that the parties are at issue, the auditors must certify the record to the Court, who will thereupon award a venire facias to try it; and if on such trial the plaintiff make a default, he shall be nonsuited; but after that he may bring a scire facias upon the first judgment. Bul. N. P. 128. + Wilmot, C. J. concluded the judgment of the Court with expressions of his own approbation to see the ancient mode of proceeding revived. the effects. After final judgment, the plaintiff should pray that the body of the accountant be IX. EXECUTION. 5. ANDREWS V. ROBSERT. 1700. 1 Lutw. 51. A motion was made by the plaintiff's counsel, that the defendant might be committed in discharge of his bail. The Court, after directing judgment to be entered, inquired if the plaintiff would have the defendant's body; when he prayed an elegit, which the Court said he was entitled to, if he preferred it to the security of the execution, or he defendant's body. A capias, however, was afterwards issued. committed in may pray an elegit. An action of assumpsit lies against a bailee to whom merchandize has been delivered, for not render ing a due account of the proceeds. * And in such an defence that the formed part of contract. Accounting, Action for not. tioneer; Principal and Agent. 1. See tit. Auction and Auc SPURRAWAY V. ROGERS. E. T. 1700. N. P. 12 Mod. 517. In an action of assumpsit, on a promise to account, it appeared that the plaintiff had delivered merchandize and money to the defendant, who had engaged to return him the value in India produce. Per Holt, C. J. If a person receives goods of another, and expressly promises to be accountable for them, or to render an account, an action of assumpsit will lie, for a non-performance of the promise. See Carth. 89; S. C. 1 Salk. 9 ; 2 B. & P. 36; 1 Saund. 50; 1 Taunt. 572; 2 Camp. 238; 5 Taunt. 431; S. C. 1 Marsh, 115.6; ante, p. 139; Precedents for not accounting, Petersdorff's Index, 5. 2. CATLIN V. BELL. E. T. 1815. N. P. 4 Campb. 183. In an action against the defendant for not accounting, it was established in evidence, that the defendant's vessel, in which the goods had been exported, had cleared out of the custom-house in ballast, and that the duties payable on the exportation of the articles had not been paid. Per Lord Ellenborough, C. J. It is no defence that this property was exported without paying duties, unless you are prepared to show that the evasion formed part of the original arrangement between the parties. See the same principle recognized, Gross v. La Page, Holt, N. P. 105; Wilkinson v. Loudonsack, 3 M & S. 117; Tenant v. Elliott, 1 B. & P. 3; Farmer v. Russel, 1 B. & P. 296. Account stated. I. WHEN DEFENDANT MAY BE HOLDEN TO II. AFFIDAVIT TO HOLD TO BAIL ON, p. 151. V. PROOF OF, p. 156. VI. WHEN AN INDICTABLE OFFENCE, TO DE- * But not until demand made of an account, Topham v. Braddick, 1 Taunt. 572. I. WHEN DEFENDANT MAY BE HOLDEN TO BAIL ON. DR. TURLINGTON'S CASE. Cited 4 Burr. 1996. A defendant ought not to be holden to bail Per Lord Mansfield. In Dr. Turlington's case he swore to the on an account sum due upon one side of the account only, without regarding the stated, withou other side of it. But this was a mere evasion, and so treated. allowing for counter-claims. 2. DROMFIELD V. ARCHER. H. T. 1822. K. B. 5 B. & A. 513; S. C. 1 D. & R. 67. On showing cause against a rule which had been previously obtained And if the requiring the plaintiff to show cause why the defendant should not plaintiff does, it have his costs under the stat. 43 Geo. 3. c. 46. §. 5. it appeared that is an arrest without reasonthe plaintiff had arrested the defendant, and held him to bail for 201. able and proknowing that the latter had a cross demand which would reduce the bable cause and debt to 67. and upon the trial he recovered the latter sum only. It within the 48 G. was contended that here there was a probable cause for the arrest; 3. c. 46; and as the statutes of set-off not being compulsory, the plaintiff could not be such the plaintiff certain whether the defendant would set off the debt due to him or not. Sed per Cur. Where there are cross demands between parties, and the balance due to the plaintiff does not amount to the sum for which a defendant may be arrested and holden to bail, we think that such an arrest is within the spirit of the third section of 43 Geo. 3. c. 46. and must be considered as an arrest" without any reasonable or probable cause." Rule absolute. 3. BROWN V. PIGEON. H. T. 1811. N. P. 2 Campb. 594. is liable to costs. In an action for maliciously holding to bail, it was proved in evi- But it seems dence that there had been mutual dealings between the parties, and that an action that the plaintiff had arrested the defendant, from whom a large sum for maliciously was due for the balance of the account only, and that the latter had holding to bail afterwards arrested the plaintiff for the smaller sum due to himself. such circumIt was submitted that under these circumstances, it must be deemed stances be suparrest without any probable cause. Per Lord Ellenborough, C. J. As the cross demands were separate and distinct, and the statutes of set-off not being compulsory, I think this action cannot be supported. At the time of the arrest the defendant had not only a probable but a real cause of action against the plaintiff; and although the conduct of the defendant may be highly censurable, yet it cannot be deemed a malicious holding to bail without probable cause. See Dromfield v. Archer, supra; and Middleton v. Hill, 1 M. & S. 240; Feely v. Reed, 5 B. & A. 515.n; Petersdorff on Bail, 426-7. II. AFFIDAVIT TO HOLD TO BAIL ON. 1. HATFIELD V. LINGUARD. H. T. 1795. K. B. 6 T. R. 217. could not under ported. The affidavit The affidavit in this case stated " that the defendant was indebted must distinctly to the deponent in the sum of 4270l. and upwards, under and by show the amount and that the amount of the suit is for the recovery of such balance. of the balance, virtue of a certain agreement in writing, bearing date and entered into between him this deponent and the said defendant, whereby he the said defendant undertook and engaged that he, together with A. B. should pay and discharge, on or before, &c. the balance of all subsisting accounts between them, which said balance is still due and unpaid to the deponent;" it was holden to be defective as it left the amount of the balance to be inferred, instead of the allegation of that fact being positive and certain. Saying that the defendant owes to the plaintiff so much money 2. EICKE V. EVANS. E. T. 1820. K. B. 2 Chit. Rep. 15. It was alleged in an affidavit to hold to bail, that the defendant was indebted to the plaintiff in 1500l. "for money laid out and expended by the deponent for the said defendant, and upon the balance of accounts." The affidavit was held not sustainable, because it did laid out and expended upon the not specify how much was due upon the balance of accounts, or of balance of ac- what the balance consisted, or whether it had been liquidated by the coun's is insuffi- defendant. cient. Semb. A request should be al leged. An account stated cannot be supported against an infant even for necessaries. 3. JONES V. EVANS. H. T. 1823. K. B. MS. Cited in Petersdorff on The question was, whether on an affidavit to hold to bail in an action for money paid, a request should be stated. The Court said, that in other cases respecting money had and received, and on account stated, it is necessary to swear to a request. III. EFFECT OF, AND WHEN SUSTAINABLE. 1. TRUEMAN V. HURST. M. T. 1785. K. B. 1 T. R. 40. Declaration in assumpsit, on a promissory note given by the defendant for board, lodging, and instructing him in the business of, &c.; and counts for meat, &c. and other necessaries; work and labour; money paid, laid out, and expended; and on_an account stated. Plea, infancy. Replication, for necessaries. Demurrer thereto, and joinder in demurrer. It was contended for the defendant, 1st. That an infant cannot bind himself by a promissory note; 2dly. There was no good consideration for the note, or for the promises in the fourth and fifth counts, which were for work and labour; 3dly. An infant is not liable on an account stated. Per Cur. This action cannot be sustained. What is an account stated? It is an agreement by both parties that all the articles are true. This was formerly considered conclusive; but a greater latitude has of late prevailed, in order to remedy the errors which may have crept into the account in surcharging the items. But an infant cannot bind himself by stating an account. Judgment for the defendant; but the plaintiff had liberty to amend on payment of costs. See 2 Stark. 36; 2 Roll. Rep. 271; 5 Mod. 368; 2 Saund. 124; Carth. 160; Moore, 679; 1 Lev. 86; Cro. Jac. 494; 1 Roll. Ab. 729; 1 Lutr. 169; Noy. 87; Palmer, 528; Bull. N. P. 129. |