The common law epitomiz'd with directions how to prosecute and defend personal actions, very useful for all lawyers, justices of peace, and gentlemen : to which is annexed the nature of a writ of error, and the general proceedings there upon : with a plain table for the easie finding out of every particular / by William Glisson and Anthony Gulston ...

Bar by a Receiver, 1. to an Action of Account; 2. before Auditors.

The Defendant pleads, he bought the goods of the Plaintiff,* 1.1 before he brought this Action for them, a good bar, 14 Hen. 4.19 pl. 21. for thereby he claims the property in them.

The Defendant pleads,* 1.2 that it was agreed that he should be bound to the Plaintiff for the prin∣cipal and use, the which he did; this is a good bar to the Action, 22 Hen. 6.55. pl. 32. for this drowns the former contract: otherways he ought to plead this before Auditors. Q. Whether it may be pleaded in bar of the Action, or in dis∣charge of the Account before Auditors. It seems it is no plea before Auditors.

So if the Plaintiff grant, that if the Defendant pay 20 l. he will withdraw his Action; this is a good bar to the Action, because of this Accord, 7 Edw. 3.325. pl. 11. 18 Edw. 3.39. pl. 35. which hath taken away the ground of the Action.

No plea, that he put it in a bag, and that the Plaintiff agreed that he should keep it in lieu of a debt; because the Receipt for Account-render is confessed, 28 Hen. 6.7. pl. 9. and so it appears the Plaintiff hath cause of Action.

The Plea was, that he did account of such a Sum such a day, and year, and place, before A and B, Auditors assigned by the Plaintiff, a good Bar, Lib. Intra. 19. D. Sect. 3. 25 Edw. 3.39. pl. 1. 2 Edw. 3.45. pl. 13. For they are Judges, and so shall not account twice for one sum.

The Plaintiff Counts of divers sums received between such and such a day, and the Defendant pleads to parcel of the time, that he hath fully accounted, and to the remainder, that he was not his Receiver; there he ought to shew of what he had accounted, 30 Edw. 3.1. pl. 4. for otherwise his plea is too general, incertain, and captious, which the Law will not permit.

That he accounted to the Plaintiff from three months to three months, and so to the time of the action, a good Bar, 39 Edw. 3.5. pl. 22.

A good bar that he did Account 1^o April; but then he ought to say, without that, that he w•••• his Receiver after, 21 Edw. 4.66. pl. 47. 7 Hen. 4.14. pl. 17. 45 Edw. 3.14. pl. 13. 34. Hen. 6.44.

Counts that he was Receiver for seven years, i•• is no bar that he accounted 1^o Maii Anno 5^o with out answering for the two other years; becau•••• he is to answer for the whole time, as well so•• the increase as principal, 7 Hen. 6 5. pl. 8.

As to 20s. received 1^o Jun. fully account•• for, and to the Receipt afterward, or before th•••• he never was Receiver, 27 Hen. 6.1. pl. 8. a goo•••• plea.

A good bar quod 21. Januarii Anno, &c. 〈◊〉〈◊〉 D, in the County of W, he fully accounted wi•••• the Plaintiff, Lib. Intra. 20. B. Sect. 8, 9, 10, 11. Be¦fore the Writ brought he did account with th•• Plaintiff, a good bar, 4 Hen. 6.43. pl. 4.

But he ought to account to the Plaintiff befor•• he is imprisoned, or else no bar; because it is pe•••• dente lite, and it appears the Plaintiff had cause 〈◊〉〈◊〉 action, else he not not been committed, 22 Edw. •• 3. pl. 32. 7 Hen. 4.14.34 Hen. 6.44. pl. 4.

For the Plaintiff cannot commit him to prison, for Westm. 2. cap. 11. gives this power only to the Auditors, 45 Edw. 3.14. pl. 13. who are the Judges.

To an Account brought by Executors it is a good bar, that the Defendant did account to the Testator, and shew his Acquittances, 1 Edw. 3.2. pl. 10. for then the Executors have no colour of action.

The Defendant pleads an award made by Ar∣bitrators, that he should re-deliver the goods, this is nought; but if he had been charged only with the safe custody of them, then good, 2 Hen. 5.2. pl. 6. For the Defendant is chargeable to Account for the provent of the goods, as well as for the goods themselves.

Account upon a Receipt by other hands, Arbi∣trement is a good bar, 22 H. 6.39. pl. 10. For the submission to the Arbitrement creates a new Con∣tract.

Notes

• * 1.1

  Bought.
• * 1.2

  Accord.