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 ...

ACCOUNT.

Account is by

• Common Law
• ...
  • By Act of Law Guardian in Soccage
  • ...
    • Next of Kin.
    • A Stranger.
  • Baily
  • ...
    • of a Court or Hundred in Law. in case of a Subject.
    • of a Mannor-house. &c. in deed. in case of the King.
  • By his own act.
  • Receiver
  • ...
    • By other hands in law in case of a Subject.
    • By his own hands in deed in case of the King.
• Statute Law
• ...
  • Marlebridge cap. 17. Against a Guardian in Soccage.
  • Marlebridge cap. 23. Against a Baily vagarant.
  • Westm. 2. cap. 23. For Executors.
  • 25 Edw. 3. cap. 5. For Executors of Executors.
  • 3 Edw. 3. cap. 11. For Administrators.
  • 23 Hen. 8. cap. 8. Collectors for repairing of Goals shall account to Justices of Peace.
  • 2, & 3 Maria cap. 8. Against Head-Constables or Church∣wardens.
  • 43 Eliz. cap. 2. Overseers of the Poor shall Account to Justices of Peace.
  • 1 Jacobi cap. 9. Against Churchwardens and Constables for Forfeitures of Alehouse-keepers by them received.

Account against a Guardian in Soccage.

In what Court Account lieth against a Guar∣dian in Soccage.

IT lies in the County Court or Common Bank. Nat. br. 117. b.

It lies not before the Sheriff, 43 Edw. 3. fol. 21. pl. 11. Thorpe: For Brook, Account 14. saith, the Sheriff cannot assign Auditors, and therefore it is in vain to bring the Action before him.

A good plea to say the Land is ancient demesn, because the reality may come in question, Coke 5. part, fol. 105. A. Aldens case.

It lies not in the Marshalsey: Coke 10. part, 74. b. Marshalsey.

Who shall have a Writ against Guardian in Soccage.

The Heir in ward shall maintain an Action a∣gainst him after the age of 14 years, or at his full age at his election. Littleton S. 123.

But Nat. br. 118. b. he shall not have it till the age of 21 years. Crook fol. 131. pl. 106. by reason of the words of the Statute of Marlebridge, cap. 17. scil. (cum ad aetatem pervenerit) 3 & 4 Ma∣riae, Dyer 137. pl. 25. New tenures 3. b. 18 Edw. 3.55. pl. 76. 29 Edw. 3. fol. 5. pl. 13. Vide Regist. origin. 136. Lib. Intra. 21. D. 8 R. 2. Gard. 166. 10 Rich. 2. Account 132. Doct. Stud. fol. 14. b. Old Nat. br. 91. A.

If the Heir in such case die before his full age, his Executor shall maintain an Action of Ac∣count, Crook 131. pl. 106. because it concerns a Chattel.

Yet note, the Heir in Gavel-kind at 15 years brought an Account against a Guardian in Soc∣cage, and shews, by the Custome he may alien at such age; and for this cause he was awarded to Account, per Welby. 29 Edw. 3. fol. 5. pl. 13. For if he may do the greater, he may do the less; to fell is more than to take an Account.

The Executor of an Heir shall have an Ac∣count,

per West. 2. cap. 23. Littleton 27. A. Crook 131. pl. 106.

Executor of an Executor shall have an Ac∣count by 25 Edw. 3. cap. 23. Com. 290.

Filius & Haeres Domini defuncti non habebit breve de computo, quia pertinet ad executionem ad∣ministrationis bonorum defuncti. Regist. Orig. 135. b

A Recusant shall not have an action for any thing that is seized into the hands of the King, 3 Jac. cap. 5. for the King is accountablle to no body.

Against what person an Account lieth as Guardian in Soccage.

Account lieth against any that taketh the pro∣fits before the Ward be of the age of 14 years, Littleton Nat. br. 118. D. 4. Hen. 7.6. 10 Hen. 6.7. 13 Edw. 3. Account 77. 29 Ed. 3.5. pl. 13.

But if one occupy, and after Guardian in Soc∣cage recover in right of the Ward, the party shall not render an Account to the Heir, for the Guardian ought to account for this, 27 Edw. 3.79. Gard. 22. and therefore the Account shall be made to the Guardian.

The reason is (as it seems) that the Writ doth not make mention of the blood. Regist. orig. 136. b. neither the Count, Lib. Intra.

Account lieth not against an Executor of a Guardian, Littleton. Nam non jacet versus Execu∣tores, quia merè pertinet ad Curam Christianam, cognoscere de computo reddendo versus Executores. Regist. orig. 135. b. 28 Hen. 8. Dyer 23. pl. 145.

But if Executors account, an Action of Debt lieth for the Arrearages, 2 Hen. 4.13. pl. 2.

And if the Testator covenants to account to the Heir and doth not, Covenant lieth against his Executor, Regist. origin. 165. b. Nat. br. 145. H.

It lies against a Woman, 19 H. 6. b. Newton.

It lies against the Husband and Wife, 18 Ed. 3.55. pl. 76.

For what things Account lieth.

It lies for Woods and Under-woods sold, for Lands, Tenements, Meadow, Pasture; also for Rents and Services, perquisites of a Court ad valentiam. Lib. Intra. 21. B, & C.

Marlebridge cap. 17. Respondeant de exitibus per aequalem computationem, salvis ipsius custodi∣bus rationabilibus misis suis.

For Fines of Copyhold Land granted by one. Trin. 1 Jac. Com. Banc. Shopland versus Rider, Rot. 853.

For the issues and profits of the Lands: Lit∣tleton.

For the Marriage of the Heir, if he marry before the Age of fourteen years: Littleton 27. a.

If the Marriage be not as great in value as the marriage of the Heir: Littleton 27. A.

No Account for the presentation of a Church; therefore the Guardian cannot present thereunto, Nat. br. 33. T. 28 Edw. 3.89. 29 Edw. 3.5. 8 Ed. 2. Presentment 10.

But by Daniel Justice, Trin. 1. Jac. Com. Ban.

Rot. 853. Shopland against Rider: the Guardian shall present, if the Heir be not of the age of discretion.

It lies for Writings, 32 Edw. 3. Account 60.

The Account against a Guardian in Soccage.

The Heir counts, that it was ordained by the Common Council of the Land, that the Guar∣dian in Soccage should Account, &c. and shews the tenure specially, and that the Defendant had the custody of the Lands, &c. from such a day for 12 years ensuing, and hath not accounted for the issues and profits, &c. and that at such a day the Heir was at full age. Lib. Intra. 21. b. Sect. 1, 2.29 Ed. 3.4. pl. 13. No. Lib. Intra. 47 E. Sect. 3.

The Writ against a Guardian in Soccage.

Rex, &c. si A. fecerit, &c. tunc summon. &c. B. quod sit coram Justic. nostris, &c. ostensum quare cum de Comm. Concilio Regni nostri provisum sit, quod custodes terrarum & tenementorum quae te∣nentur in Soccagio haeredibus terrarum & tenemen∣torum. cum ad aetatem pervenerint, reddant ratio∣nabilem computum suum de exitibus, terris, & te∣nementis illis provenient: de tempore quo custodes illi habuerunt, ratione minoris aetatis haeredis prae∣dictae, idem B. praefato A. rationabilem computum suum de exitibus provenient. de terris & tenemen∣tis suis in N. quae tenentur in Soccagio, & quorum custodiam idem B. habuit, dum praedictus A. infra aetatem fuit, reddere contradicit, ut dicitur. Et ideo, &c. This Writ is founded per le Stat. de Marlebr. cap. 17. Nat. br. 118. A. Regist. orig. 136.

Note, this Writ lies against any one that occu∣pies the Land during the nonage of the Ward, whether it be the parents of the Heir or not, Re∣gist. origin. 136. b. for it makes no mention of the blood, but only of taking the profits.

The Writ was Receptor denariorum: A good plea to the Writ, because he was Guardian in Soc∣cage, for otherwise he would be twice charged, 18 Edw. 4.3. pl. 17. viz. as a Receiver of his rents or profits of the Lands, and also as a Guardian in Soccage by the Statute.

The Process against a Guardian in Soccage: 1. Before appearance. 2. After appearance.

[unspec 1] The Process at Common Law before appear∣ance was but a Distress infinite, Coke 3. part. 12. A. Herberts Case.

But per Marlebridge cap. 23. a Capias was gi∣ven against a Baily, and per Westm. 2. cap. 11. ex∣igend. given against a Servant, Baily, Chamber∣lain, or any other Receiver, Coke 3. part 12. A. Herberts Case.

And in Account against a Guardian there shall be a Capias, 29 Edw. 3.5. pl. 13.

But no exigend. because this was given against a Receiver only, 17 Edw. 2. Process 203. 17 Edw. 3.59. pl. 55. Shard.

* 1.1If he comes in by Capias or distress, he shall be committed to the Fleet, 29 Edw. 3.35 pl. 63.

If the Account be adjudged to lie, &c. and he be not present in Court, a Capias ad computan∣dum shall issue forth, 1 Edw. 3.2. pl. 10. 1 Hen. 7.1.

pl. per Townshend. Lib. Intra. 18. c. Sect. 1, 2, 3.

In Judgment quod computet: the Plaintiff dies, his Executors shall have a Scire facias upon the Judgment, and if the Defendant come not in up∣on the garnishment or warning, an exigend. shall issue forth, 14 Hen. 4.1.

The Barr by a Guardian in Soccage: 1. To the Action of Account. 2. Before Auditors in discharge.

[unspec 1] That he had the Custody till such a day from such a day, and accounted till the full age of the Plaintiff without that, that he was Guardian be∣fore or after, Lib. Intr. 21. cap. Sect. 2.

It is a good Barr in discharge of the Account, that he expended so much for necessaries for the Plaintiff, ultraque, &c. Littleton.

No Barr to say he was not next of Kin, for the occupation is the substance, and not the Kin∣dred, Littleton 29 Edw. 3.5. pl. 13. 22 Edw. 3.11. pl. 8. 4 Hen. 7.6. b. 10 H. 6.7. pl. 21. 13 Edw. 3. Account 77.

That he was never Guardian in Soccage a good Barr, Lib. Intra. 21. b. Sect. 1.

The Judgment against a Guardian in Soccage, 1. Of Account. 2. To recover the thing.

* 1.2The Judgment is, quod computet, & ideo in mi∣sericord i, quia prius non computavit, Coke 11. par. 38. A. Metcalfs Case. Lib. Intr. 19. D. Sect. 1.

[unspec 2] The Judgment is, Ideo consideratum est, quod

praedictus W. recuperet versus praefatum M. to reco∣ver as much as he is found in Arrearages, & damp∣na occasione implacitationis: Coke 11 part 40. A.

Execution against Guardian in Soccage: 1. per Common Law, 2. per Statute Law.

[unspec 1] By the Common Law it was but a Levari fa∣cias or Fieri facias: Coke 3. part 12. A. Herberts Case.

And this only within the year; for if the year passed, he was put to his Action of debt.

If the Process were not continued, 33 Hen. 6.49. pl. 33.

[unspec 2] Per Westm. 2. cap. 45. Scire facias is given after the year.

Per Westm. cap. 2.18. Elegit is given, Coke 3. part 12. a.

Per Marlebridge cap. 23. & Westm. 2. cap. 11. Capias was given in Process and by consequence, Capias ad satisfaciendum: Coke 3. part 12. a.

Per Westm. 2. cap. 11. If an Accountant be∣fore Auditors be found in Arrearages, he shall be by them committed to the next Goal in execu∣tion; but then they ought to commit him forthwith, Coke 8. part 119 b. Bonhams Case. 27 Hen. 6.8. Com. 17.

But if an Account be before the Plaintiff, he ought not to commit him to prison; because the Statute saith, before Auditors, 45 Edw. 3.14 pl. 13.

Ex parte talis.

Westm. 2. cap. 11. If Auditors are assigned by the party, which will not allow to the Guardian

his reasonable allowances, and they charge him with the thing he never received, and him com∣mit to prison, he shall have an Ex parte talis. Nat. br. 129. F. 4. Hen. 6.18. A. pl. 3. Regist. orig. 137. b.

The Writ is returnable before the Treasurer and Barons of the Exchequer at a certain day, and a Scire facias is in the Writ, to warn the Plaintiff and also the Defendant to be there, Nat. br. 129. G, H. Regist. orig. 137.

Account against a Baily, 1. of a Court or Hundred. 2. of a Mannor-house, &c.

In what Court it lies against a Baily.

IN the County Court: Regist. origin. 135. A. Nat. br. 117. b.

In London before the Sheriffs, Regist. orig. 135. A & B.

In the five Ports, Rigist. origin. 135. A.

In Communi Banco, Nat. br. 117. b. Regist. orig. 135. B.

But Ancient demesn is a good plea to the ju∣risdiction, Coke 5. part 105. A. Aldens Case; be∣cause the Account is of the issues and profits of the Mannor, 8 H. 6.34. pl 36. 2 Ed. 4.3. pl. 3.

And the reality by presumption may come in debate, Hobart Chief Justice, Hill. 11 Jac. Com. Ban. Rot. 254. Cox & Barnesley.

Who shall have an Account against a Baily, 1. of a Court, 2. of a Mannor.

[unspec 1] If A. make B. his Baily of his Court or of a

Hundred, he shall have an Account against him. Nat. br. 118. E.

* 1.3A. having a Bailywick makes B. his Under-Baily, he shall have Account against B. 3 Edw. 3.54. pl. 24.

A. makes B. his Baily,* 1.4 which makes G. his Deputy, A. shall have Account against B. but not against C. because C. receives this to the use of B. Nat. br. 119. B. 14 Edw. 3. 100. pl. 8.

[unspec 2] An Infant purchases Lands, he shall have an Account, if any take the profits. Nat. br. 117. B.

For the profits that the Guardian in Soccage takes after the Heirs age of 14 years, the Heir shall have an Account during his nonage against him as his Baily: but for the profits taken before such age, he shall have Account as Guardian in Soccage; but not before his full age. Nat. br. 118. B. because he cannot be Guardian after the age of 14 years.

* 1.5Major and Aldermen of London grant the Wardship of an Orphan to A. they shall have an Account against A. at the full age of the Orphan. 8 Rich. 2. guard. 166.

A. devises to his Executors that they shall sell his Land, and that his daughter shall have part of the money, she shall have an Account at the Com∣mon Law. 4 & 5 Mariae Dyer 151. pl. 5.

A Lunatick shall have an Account against the Committee,* 1.6 when he comes to his sound memo∣ry; for the Committee is but in the nature of a a Baily. 28 Hen. 8. Dyer 26. pl. 164. Coke 4. part 127. b. Beverley's Case.

An Executor shall have an Account.* 1.7 Nat. br.

117. C. 3 Edw. 3.66. 7 Edw. 3.269. 5 Edw. 3.141. pl. 7.

But this was by Westm. 2. cap. 23.

And if one hath Judgment against a Baily upon an Account, and dieth, his Executors shall have a Scire facias, 14 Hen. 4.1. upon the Judg∣ment.

Executor of an Executor shall not have an Account, per Westm. 2. cap. 23. 7 Edw. 3.270. pl. 54.

But this was given per 25 Edw. 3. cap. 5. pl. Com. 290.

Filius & haeres domini dofuncti non habebit Bre∣ve de Computo super Ballivum, quia pertinet ad ex∣ecutionem administrationis bonorum defuncti. Re∣gist. Orig. 135. b▪

Husband receives the profits of the Lands of his wife and dies, the wife shall not have an Ac∣count for the profits during the Coverture a∣gainst the Executors of the husband. Nat. br. 119. A.

Joynt-tenant makes his Companion his Baily, he shall have Account against him, 21 E. 3.60. pl. 5. Q.

Two Joynt-tenants of a ward; one takes all the profits, the other shall have an Account. Nat. br. 118. J. 39 Edw. 3.28. pl. 25. 45 Edw. 3.1. Q.

Two Joynt-occupiers of a house and Mer∣chandise, one shall have Account against the o∣ther as Baily of the house and Merchandise. Lib. Intra. 18. Sect. 6.

Terre-tenant shall have an account against Te∣nant by Elegit, but this is only by Scire facias,

Old Nat. br. 24. 21 Edw. 3.26. pl. 21. & fol. 10. pl. 13. 21 Edw. 3.2. pl. 60. 5 Edw. 3.159. pl. 20. Conusor shall have it in the same manner against the Conusee, Coke 4. part 67. b. 47 Edw. 3.11. pl 9. & 25. pl. 63.

Prior, Abbot, or Master of an Hospital shall have an Account for the time of their Predeces∣sor, Nat. br. 117. F. Regist. orig. 135. b. 4 Edw. 3.100. pl. 8. 25 Edw. 3.545. pl. 19. 28 Edw. 3.90. 30 Edw. 3.1.

If one make another Baily of his Mannor, &c. he shall have an Account against him as Baily, Nat. br. 116. D.

Breve fuit quod reddat, &c. M. & sociis suis mercatoribus de societate de D. in Flandria ratio∣nabilem computum; this is naught, 5 Edw. 3.138. pl. 39. for the generality of it.

The King may make a Bayliff of a Mannor, and shall have an Account against him, 33 Hen. 6.2. pl. 10. and fol. 29. b. pl. 2.

Against whom an Account lieth as Baily, 1. of a Court or Hundred. 2. of a Mannor &c.

[unspec 1] A.having a Bailywick makes B. his Under-Baily to gather the Amercements, he shall have an Account against him, 3 Edw. 3.54. pl. 24.

If one enter into my land to my use,* 1.8 and take the profits, I shall have an Account against him as Baily in Law, Nat. br. 117. A.

An Infant purchases Lands, his parents occupy this, he shall have Account against them as Bai∣lies in Law, Nat. br. 117. b.

Non jacet versus Executores, quia mere pertinet ad curam Christianam cognoscere de Computo red∣dendo, versus Executores, Regist. origin. 135. b. Nat. br. ••••7. C. Littleton, 48 Edw. 3.2. 4 Edw. 4.25.

But if an Executor will account, though not compellable, debt lieth for the Arrearages due upon the Account, 2 Hen. 4.13. P. 2.

And if a Baily be found in Arrearages be∣fore Auditors, his Executors shall be charged, if they have Assets, 11 Hen. 4.84. & fol. 19. pl. 48.

It lieth not against a Deputy-Baily, Nat. br. 119. B. 4 Edw. 3.100. pl. 8. because the Head-Baily is chargeable.

It lieth not against an Infant, 118. D. Nat. br. be∣cause he hath not discretion to Account, 21 Edw. 3.8. pl. 21. Regist. origin. 135. A. Also he cannot wage his Law, 26 Edw. 3.63. b. for he cannot take an Oath.

It lies against a Woman, Nat. br. 118. D. 19 Hen. 6 4 pl. 10.

Two Joynt-tenants of wood, one sells all and takes the money, the other shall not have an Account against him, Doct. & Stud. 32. b.

It lies not against a Surveyor or Controller, Nat. br. 119. C.

The King shall have an Account against any person that takes the profits, though he claim them to his own use per Prerogativam, Coke part 11.90. Devoushers Case. 35 Hen. 6.27. b. Nottingh. 8 Eliz Dyer 249. pl. 83.

The King shall have an Account against an Executor, Littleton, Coke 11. part 89. B. Devoushers Case, per Prerogativum.

For what things Account lieth against a Baily, 1. of a Court, &c. 2. of a Mannor, &c.

Crook 21 Hen. 7.75. pl. 23. Account against one as Baily Burgi sui de B: and good.

Account against one as Baily of a Mannor, Nat. br. 116. P.

Account against a Steward of an House, and of Goods in it, 14 Hen. 4.20. 9 Edw. 3.356. pl. 40.

Account for the delivery of three Tuns of Wine sold, 43 Edw. 3.2. pl. 11. 46 Edw. 3.3.3. pl. 6.13 Rich. 2. Account 50.

For Herrings delivered and sold, 46 Edw. 3.9. pl. 4.

For four sacks of Wool delivered and sold, 9 Edw. 3.359. pl. 38.

Tenant per Elegit accounts for the overplus, Old Nat. br. 34. 21 Edw. 3.26. pl. 21.

A man accounts for the profits de, &c. Nat. br. 118. B.

A Baily of Woods accounts for Herons and Hawks, 14 Edw. 3. Account 131. Moubrey.

Arrearages of Rent upon a Lease for years or at will lies not in Account, for nothing certain lies in an Account, 19 H. 6.20. pl. 67. 20 H. 6.16. pl. 2. as the Rent is; but an Action of Debt.

So of Goods leased with a House, although they are wasted, 20 H. 6.16. pl. 2.

So for a Custome, that one shall gather Rents, and take the toll and pety Customes payable to the Lord 22 l. annuatim, because he pays a certain sum, 11 Hen. 6.14. pl. 4.

The Count against a Baily, 1. of a Court or Hundred. 2. of a Mannor, &c.

Counts that from such a day to such a day he had the administration de bladis, foenis, equis, bo∣bus, vaccis, porcis, bidentibus, carucis, ac de omni∣bus aliis rebus, &c. & de, &c. ad merchandizan∣dum & proficuum faciendum, &c. & ad rationa∣bilem Computum, &c. Lib. Intra. 17. A. Sect. 1. vide more Lib. Intra. 17. a, & b. sect. 1, 2, 3, 4, 5. fol. 17. b, &c. sect. 1, 2, 3, 4, 5, 6.

The Plaintiff ought to Count that the Defen∣dant was Baily of the Mannor-house and Lands, &c. and yet it is not material whether he had the Mannor-house, &c. for the Receipt charges him, 9 Edw. 3.356. pl. 38. Stoner. 27 Edw. 3.29. pl. 25.

He need not count the things particularly, be∣cause it may be shewed before the Auditors, Crook 1 Hen. 8.153. pl. 2. where he is to charge him particularly.

But the Book of 49 Edw. 3.13. 14 Hen. 4.14. says, that it is material. Q. inde.

If Account be brought against one that by Custome ought to gather the Rents, the Count must be special, 21 Hen. 7.76. pl. 23. because the Custome makes the case to be special.

The Count was against one as Baily of a house and merchandise occupied by Joynt-tenants, ex quacunque causa seu contractu. Lib. Intra. 18. A. sect. 6.

The Count was, that he was Baily at the Feast of St. Michael, and good, because it shall be

intended th'Archangel, Coke 11. part 39. A. Metcalfes Case, 20 Hen. 6.23.

The Count was against a Tenant per Elegit, that he had made waste to the value, &c. Old. Nat. br. 34.

Conusor counts that the Conusee had levied the sum, or that he had levied part, and ten∣dred the remnant, 47 Edw. 3.11. pl. 9. and fol. 25. pl. 63.

And so of the Assignee of a Conusor, 25. Ed. 3.53. pl. 17.

The King is not held to Count against one as Baily, but may alledge generally in his informa∣tion, quod ille ad computand. Domino Regi tenetur; and if it be against Executors, quod is tempore mortis suae tenebatur. Coke 11. part 90. Devou∣shers Case.

The Writs against a Baily, 1. of a Court or Hundred, 2. of a Mannor, &c.

Rex,* 1.9 &c. Praecipimus tibi quod Justicies I. B. quod justè, & sine dilatione reddat B. rationabilem computum suum de tempore quo fuit Ballivus suus in M. sicut rationabiliter monstrare poterit, quod sibi reddere debeat, ne amplius inde clamorem audiamus pro defectu justitiae, Teste, &c. Regist. o∣rig. 135 A.

In London, Regist. orig. 135. A.

For Executors, Regist. orig. 135. A.

For Merchants, Regist. orig. ibid.

Rex, &c. Praecipe A. quod justè,* 1.10 &c. reddat B. rationabilem Computum suum de tempore quo fuit Ballivus suus in N. & nisi fecerit, & praedictus B.

fecerit te securum de clamore suo prosequendo; tune summ. per bonos summonitores praedictum A. quod sit coram Justie. nostris apud Westm. à die Paschae in quindecim dies ostensur. quare non fecerit: & ha∣beas ibi summ. & hoc breve Teste, &c. Regist. orig. 135. b. Nat. br. 117. E.

It lies for a man and his Wise. Regist. orig. 135. b.

For a Master of a house. Regist. orig. 135. b.

For a Prior in the time of his Predecessor. Re∣gist. orig. 135. b.

For an Executor and an Abbot Co-executor. Regist. orig. 135. b.

But there is another form of a Writ founded upon the Statute of Marlebridge, cap. 23. Nat. 117. H. orig. Regist. 135. b.

Account against B. as Baily and Receiver in K. a good bar to the Writ, that he was not Baily nor Receiver in K. 21 Hen. 6.21. pl. 42. Vide 44 Edw. 3.1. pl. 2.

The Writ ought to comprehend the County. 10 Edw. 3.365. pl. 19. Shard.

If it be brought against one as Receiver, where he was Baily, it shall abate. 3 Edw. 3.70. pl. 28. 18 Edw. 4. pl. 17. For the Law takes notice of them as distinct and different employments.

But one Writ may comprehend Baily and Re∣ceiver. 9 Edw. 3.356. pl. 38. Nat. br. 116. P. 21 Hen. 6.21. pl. 42. Regist. orig. 135 b. For a man may be charged in a double capacity, and if he rightly charged either way it is gone.

The process against a Baily, 1. before appearance; 2. after appearance.

At the Common Law the Process was but a di∣stress infinite, Coke 3. part. 12. A. Harberts case.

But by Marlebridge, cap. 23. a Capias was given, Coke 3. part. 12. A.

And per Westm. 2. cap. 11. process of Outlawry is given, Coke 3. part. 12. A. 17 Ed. 2 process 203. 17 Edw. 3.59. pl. 55. Shard. 29 Ed. 3.5. pl. 13.

But against Tenant by Elegit, is but a Scire facias, 21 Edw. 3.2. pl. 6. 5 Edw. 3.159. pl. 20. Regist. judicial. 73. b. Old Nat. br. 34.

And if they appear not being summoned, judg∣ment shall be given against them, 5 Edw. 3.159. 21 Edw. 3.1.

Conusor shall have a Scire facias against the Conusee, Coke 4. part. 67. b. 47 Edw. 3.11. pl. 9. & fol. 25. pl. 63.

So the Assignee of a Conusor, 25 Edw. 3.53. pl. 17.

If a Baily come in by Capias or Exigend. he shall be forthwith committed to the Fleet, 29 Edw. 3.35. pl. 63. for his contempt in not appearing be∣fore.

So if he come in by Distress, and the Account be adjudged, 29 Edw. 3.35. pl. 63.

But if the Account be adjudged, and he be not present in Court, a Capias ad Computandum shall issue out against him, 1 Edw. 3.2. pl. 10. 1 Hen. 7.1. pl. 1. Townsend, Lib. Intra 18. c. Sect. 1, 2, 3.

The Bar for a Baily, 1. to an action of Account; 2. before Auditors.

A good Bar,* 1.11 that he did account before Audi∣tors, 25 Edw. 3.39. pl. 1. 2 Edw. 3.45. pl. 13. Lib. Intra. 17. A. Sect. 1. he shall shew the time and the Auditors.

But in pleading he ought to say, that the Au∣ditors were assigned by the Plaintiff only, and not by his assent, 29 Edw. 3.40. pl. 21.

A good Bar, that he did account with the Plain∣tiff himself. Lib. Intr. 18. A, & B. Sect. 6.11 Rich. 2. Stath. Account 46. 45 Edw. 3.14. pl. 13.

But it is no Bar to say,* 1.12 he did account with the Plaintiff after that he had imprisoned him, 22 Edw. 3.13. pl. 32.

Account per Executors a good Plea, that he did account to the Testator, and shews an Acquit∣tance of the Testator. 1 Edw. 3.2. pl. 10.

Heir Frank-tenant a good bar, 28 Edw. 3.90.

An Abbot brought an account against B. as Bai∣ly of his Predecessor, and the Defendant pleads,* 1.13 that he had a Lease of his Predecessor for 3 years, and entered after the end, and found certain things there; this is a good Bar, 16 Edw. 3.368. pl. 30.

The Defendant said, that it was debated be∣tween the Plaintiff and his Wife, and it was a∣greed, that the Wife should have the Land for her maintenance, and she leased to the Defendant rendring Rent; this is a good bar, 47 Edw. 3.18. pl. 34.

An account for the delivery of three Tuns of Wine; a good bar for the Defendants to say▪

that the Wife was a common Taverner, and that they were Bailies for the sale thereof, without the assent of him, and that she fold and paid the Plaintiff, without that, that they were his Bailies in any other manner, 13 Rich. 2. Account 50.

Defendant pleads a Lease to him of the Mannor, a good bar, 49 Edw. 3.7. pl. 11.

Account of a House and Goods: it is no Plea to say, he bought the goods of the Plaintiff; but must say without that, that he was his Baily for Account-render, 49 Edw. 3.7. pl. 11.

Payment by command of the Plaintiff,* 1.14 a good bar in discharge, Coke 11. part. 38. B. Metcalfs case. 1 Edw. 5. 42 Edw. 3.6. pl. 21. But this is before Auditors, and not in bar of the Action.

The Defendant said,* 1.15 that he was Servant to the Plaintiff, and he did chase the Cattel out of the field, without that, that he was Baily in any other manner; for if the Cattel are hurt he shall have an action of the Case, 7 Hen. 4.14. pl. 18.

He was his Surveyor, without that, that he was his Baily, 4 Edw. 3. Account 34.

The Defendant said,* 1.16 that the Plaintiff granted by Deed, and shews, that when he came to C. he was to acknowledge a Statute Merchant, that the Account should not be, and shews likewise, that he did it; this is nothing without saying, he de∣livered it to the Plaintiff, 20 Edw. 3. Account 79. Q.

Account for the delivering of Tyn,* 1.17 &c. the Defendant said, that he delivered this, and took an obligation in the name of the Plaintiff; this is no bar, 28 Hen. 8. Dyer 29. pl. 193. for he had no authority to take the Bond.

Baily of Woods to sell; it is no Plea to say, he had not sold them, because this comes in debate before Auditors, 14 Edw. 3. Account 131.

The plt. after judgment for him quod Comput. dies, his Executors shall have a Scire facias; the which being served, if he appear not, an Exigend. shall issue out against him, 14 Hen. 4.1.

The Judgment against a Baily, 1. of Account; 2. to Recover the things.

[unspec 1] The Judgment is, Quod Computet & ideo in mi∣scricordia, quia prius inde non Computavit. Coke 11. part. 38. A. Metcalfs case. Lib. Intra. 19. b. sect. 1. & 20. D. sect. 1.

Quod computet for parcel, and Bar for the remnant. Lib. Intra. 22. A. sect. 12.

[unspec 2] The Judgment is, Ideo consideratum est quod praedictus W. recuperet versus praefat. M. as much as he shall be found in Arrearages, & dampna oc∣casione implacitationis, &c. Coke 11. part. 40. A. Metcalfs case.

Scire facias against Tenant per Elegit to Account, and not appearing upon garnishment; the Judg∣ment was, that the Plaintiff shall recover his Lands without any more process upon the cause of the Account, &c. 5 Edw. 3.159. pl. 20.

Execution against a Baily, 1. per Common Law; 2. per Statute Law.

[unspec 1] By the Common Law he shall have but a Le∣vari facias, or Fieri facias. Coke 3. part. 12. A. Harberts case. And this within the year only, for

if the year pass, he was put to his Action of debt, if the process were not continued, 33 Hen. 6.49. pl. 33.

[unspec 2] Per Westm. 2. cap. 45. a Scire facias is given after the year.

And per Westm. 2. cap. 18. Elegit is given. Coke 3. part. 12. A.

And per Marlebridge, cap. 23. and Westm. 2. cap. 11. Capias is given in process.

And per consequence a Capias ad satisfaciendum after Judgment, Coke 3. part. A. 12.

And by the Statute of Westm. 2. cap. 11. if an Accountant be found in arrearages before Audi∣tors, he shall be Committed by the Auditors to the next Goal in execution.

But then the Auditors ought to Commit him to prison forthwith. Coke 8. part. 119. b. Bonhams case, 27 Hen. 6.8. Com. 1.7.

But if he Account before the plt. he cannot Commit him to prison, 45 Edw. 3.14. because he shall not be Judge in his own cause.

Ex parte Talis by a Baily.

Per Westm. 2. cap. 11. if Auditors be assigned by the party which will not allow to the Accountant reasonable allowances, or charge him with a thing he never received, and Commit him to prison, he shall have a Writ ex parte talis. Nat. br. 129. F. 4. Hen. 6.18. A. pl. 3. Regist. orig. 137. b.

But if Auditors be assigned by the Court, and they do not allow reasonable allowances, he shall not have this Writ, but shall shew it to the Court, and they shall make allowances, Nat. br. 129. F. 3 Edw. 3.56. pl. 30.

If it be sued in London, and Auditors be assign∣ed by the Court which will not allow, &c. there this Writ lieth, Nat. br. 129. F.

But note in Regist. orig. 137. b. is against it. go: Q.

But if the Plaintiff assign Auditors there, then such Writ lieth, Nat. br. 129. I. Regist. orig. 137. b.

The Writ shall be returnable before the Trea∣surer and Barons of the Chequer at a day certain, and a Scire facias in the Writ to warn the Plain∣tiff and Defendant to be there, Nat. br. 129. Regist. orig. 137.

Account against a Receiver, 1. in Law; 2. in Deed.

The Court where it is to be brought,

IN the County Court, Regist. orig. 135. A.

In London, Regist. orig. 135. A.

In the 5 Ports, Regist. orig. 135. A.

Before Justice of Peace, per 2. Marlebridge, cap. 8.

Before Auditors, per Westm. 2. cap. 11.

In the Com. Ban. Regist. 135. Nat. br. 117. E.

Who shall have an Account against a Receiver.

Husband and Wise shall have an Account upon a Receipt dum sola fuit, 22 Hen. 6.39. pl. 10.

Executor shall have an Account, but this is per Westm. 2. cap. 23. Nat. br. 117. C. 3 Ed. 3.66.7 Edw. 3.209.5 Edw. 3.141. pl. 7.11 Hen. 4.479.

But one Executor shall not have an Account against his Companion. 11 Hen. 4.79. pl. 20. for there is no privity betwixt them, and they have interest in the goods of Testator, in his right, and not their own.

If one have Judgment against a Receiver, and dies, his Executors shall have a Scire facias. 14 H. 4.1.

If two Merchants occupy in Common and one die, his Executors shall have an Account against the other. Nat. br. 117. D. for the two Merchants had several Interests.

An Executor of an Executor shall not have an Account, but only by the Statute of 25 Edw. 3. cap. 5. Com. 190.17 Edw. 3.270. pl. 5.

Filius & haeres non habebit breve de Computo versus Receptorem, quia pertinet ad executionem Administrationis bonorum defuncti. Regist. orig. 135. B. and therefore it belongs to the Excecutor.

Guardians of a Church against their Prede∣cessors, 8 Edw. 4.6. P. 5. shall have an account in right of the Parish.

And per 2. Marlebridge cap. 8. they shall have an Account against a Baily or head Constable of an Hundred, &c. for amerciaments, or not re∣pairing High-ways.

Guardians and Parishioners shall have an Ac∣count against Constables and Churchwardens for Forfeitures of Alehouse-keepers, in the same manner as for other things by the Common Law, 1 Jac. cap. 9.

Two Joynt-tenants of goods, one of them de∣livers the goods to the other to render Account, one shall have an Account against the other. 43

Edw. 3.21.12 Hen. 4.18. Nat. br. 118. H. for here is a privity betwixt their several Interests.

The Sheriff levies Money upon a fieri facias, and does not deliver it to the plt. neither brings it into Court, the plt. shall have an account against him, 11 H. 4.58. pl. 8.20 Hen. 6.24. A. 21 Hen. 6.5. A. Or the party may move the Court against him.

If one testifie by his deed, that he received 20 l. to bestow for me, I shall have an Account, Hen. 8. Dyer. 20. pl. 118.11. Hen. 6.39. pl. 31. for the pri∣vity appears by the deed.

So if one receive Money to my use, Nat. br. 117. Q. 6 Hen. 4.7. pl. 33. But here I must prove the Receipt, though I need not in the former case.

So if A. deliver Money to B. to deliver to me. Nat. br. 117. Q. 13 Hen. 4. pl. 1. Hankeford, Nat. br. 138. A. I shall have an Account upon the privity in Law, and A. may have an Account upon the privity in Fact, Q.

A. indebted to B. in 200 l. prays C. to receive this for him. A. prays C. to borrow this to pay B. C. borrows it of D. to pay to B. but pays it not at the day. A. was bound to D. for re-payment. B. shall have an Account against C. for this Money belongs to B. insomuch that C. had his warrant to receive it, Hill. 12 Jac. Com. Bon. Harringdon versus Dean: and so there is a trust and privity betwixt them.

A. delivers Money to B. to deliver to C. and he pays it not, A. shall have an Account against him. Crooke 21 Hen. 7.69. pl. 2. per Frowicke. Q. if C. may not have an Account.

The King shall have an Account,* 1.18 if goods be

devised to him, against the Possessour in whose hands soever they be, Coke 11. part. 90. A. Devou∣shers case. 40 Assi. pl. 35. per Praerogativam suam. For wheresoever the King hath equity, the Law will not be deficient to him.

If one takes goods which appertain to the King, claiming them to his own use; yet the King shall have an account, Coke 11. part. 90. A. 33 Hen. 6.2. 35 Hen. 6.27. B. Nottingham. 8. Eliz. Dyer 249. pl. 83. For the right being disputable, the Law will judge the Kings claim to be true ra∣ther than the others; for the King can do no wrong in the eye of the Law.

Two offer to be bound for A, that he shall serve the King truly in such an Office, and they present him to the King, and he doth not perform his Office, they shall account to the King, though they are not bound, Coke 11. part. 92. B. Devou∣shers case. 30 Edw. 3. Rott. 6. For the King re∣posed trust in them, and he shall not be prejudiced by them.

If one be entituled to an action of Account, and be outlawed, the King shall have an Account for it, 28 Edw. 3.92. pl. 10. for he comes in the stead of the party outlawed.

If one be indebted to the King and dies, the King shall have an account against his Executors or Tertenant, 5 Eliz. Dyer 225. pl. 33. At his Election Q. whether against both.

Against whom Account lieth as Receiver.

It lies not against a Prentice, Nat. br. 119. D. 7 Hen. 4.14. 8 Edw. 3.310. pl. 26. for there is no Writ in the Register against a Prentice, Coke

11. part. 89. B. Devoushers case; for a Prentice is not sui juris.

Per a. Marlebridge, cap. 8. Churchwardens shall have an account against a Baily or head Constable, for amerciaments for Highways not repaired.

It lies against the Husband for the receipt of the Wife, Nat. br. 118. F. for her Receipt is his Re∣ceipt. Q. If the Receipt was dum sola fuit it seems it doth.

It lies against a Deputy of a Receiver, for he receives this to the use of his Master, Nat. br. 119. B. 4 Edw. 3.100. pl. 8. therefore the Master shall have account.

It lies not against an Executor,* 1.19 Nat. br. 117. C. Littleton, Regist. orig. 135. B. quia mere pertinet ad curam Christianam cognoscere de computo reddendo versus executores, 48 Edw. 3.2. 4. Edw. 4.25. Q.

But if an Executor will account, he shall be charged afterward, 2 Hen. 4.13. pl. 2.19. Hen. 6.5. A. Fortescue; for he hath waved the Spiritual Court.

Note in the case of the King he shall have ac∣count against Executors, Littleton. For he may recover his right by what Law he pleaseth.

It lieth not against an Infant, Nat. br. 118. D. because he hath not discretion to account, and so may wrong himself in his Account; and per. 21 Edw. 3.8. pl. 21. Regist. orig. 135. A. 26 Edw. 3.63. he cannot wage his Law, because he must perform his Law by taking his Oath.

It lies against a Woman or Chaplin, Nat. br. 118. D. viz. a Feme sole.

Churchwardens shall have an account against their Predecessors, 8 Edw. 4.6. pl. 5. for they are persons intrusted by the Parish.

Two being bound, both of them to Account, and each of them of the whole; quaere if Account lies against one only, 5 Edw. 3.141. pl. 8.

It lies not against a Parish-Priest that hath the Offerings, for the Clark holds the vessel in which they are put, Nat. br. 119. E. 25 Edw. 3.46. pl. 32. vide 11 Rich. 2. Jurisdiction 18. and he is not tied to be responsable for his Clark.

The King grants the Toll of a Village to the Inhabitants, and in the said Village there were certain Collectors to receive it, the Village shall have a Commission out of the Chancery against him that receives this Toll, to hear and determine it, and to hear their Accounts, &c. Nat. br. 119. F.

If any takes the goods of the Kings Debtors which dies, the King shall have an Account against him, Coke 11. part. 93. A. For the Law creates a privity in case of the King, for the preservation of his Revenue.

It lies for the King against a Debtor, or his Executors or Tertenents, 5 Eliz. Dyer 225. pl. 33. Com. 321. Mynes.

But if one purchase to him and his Wife, and he become indebted to the King, and die, his Wise shall not be charged, 5 Eliz. Dyer 215. pl. 33. Contra, if he be first in debt, and purchase but a Chattel, 5 Assiz. pl. 5. For the Feme had an in∣terest in the Land made by the Husband, and she shall not be charged with her Husbands debt; but the Executor of the Husband.

If one be an Accountant to the King, and be∣come indebted to the King, and afterward sell a Lease for years, the Vendee shall not be charged, because it is but a Chattel, Coke 8. par. 171. A. and

it was lawful for him to buy it, and might not know the Vendor to be an Accountant.

One in debt to the King purchases Lands with the Kings money, to the use of some Friends in Fee per covin, and yet takes the profits, the King shall have the Lands in execution, 5 Mariae, Dyer 160. pl. 41.24 Edw. 3. Rot. 4. Coke 11. part. 92. B. Devoushers case. For the Law abhors Fraud in all parties, but especially where the King is concerned.

For what things Account lieth against a Receiver.

A. delivers three tuns of Wine to B. to sell, he shall have an Account against him for them; but then he ought to count of the receipt of every sum received of every several man, 43 Edw. 3.21. pl. 11. 46 Edw. 3.3. pl. 6. 46 Edw. 3.9. pl. 4. Hill. 43 Eliz. Com. Ban. Rot. 1707. Tresham against Ford. A indebted to B, and C indebted to B. A sends mo∣ney to B by his Servant, which accepts of it for the debt of C, and not for the debt of A; yet A shall have an Account against B, because he cannot accept of this in any other manner than the o∣ther tendered it, which was, to satisfie his own debt.

If one receive money to my use he shall account for it, Nat. br. 117. q. 6 Hen. 4.7. pl. 33. Q. if he receive it against my will or consent.

So if A deliver money to B, to deliver to me, Nat. 117. g. 13 H. 4. pl. 1. Hankeford, Nat. 138. A. I shall have an account, for it was delivered for my benefit: Q. if A shall not have an account.

He which ought to pay me an Annuity, pays this to another to pay me, or if my Tenant pay it

to another to pay me, I shall have an account against him that received it, or I may charge my Tenant notwithstanding the delivery of it, so not a double remedy, 6 Hen. 4.8. pl. 33.

A delivers Money to B beyond the Sea to be paid in England, he shall account for it to A, be∣cause the payment was to be made in England, and that was the ground of the delivery of it. Nat. br. 118. G. 41 Edw. 3.3.

Money delivered to one upon the performing of a Condition, if the condition be not perform∣ed the money to be re-delivered, he shall account, Nat. br. 118. G. 41 Edw. 3.10. 18 Hen. 8. Dyer 22. pl. 135. 11 Hen. 6.39. pl. 31. for the Condition implies an Account, if not performed.

A leases Tithes to B rendring Rent: A being indebted to C, assigns B to pay this. No account lieth for this, 5 Edw. 4.140, 141. for if it be not paid A may have his Action for the Rent, and B is not a Receiver in this case.

If goods be devised to the King, account lieth for them, Coke 11. part 9. A. Devoushers case. For the King may use what Action he will to recover his right, and no injustice is done to any by this Prerogative.

If one take goods of the Crown, and claim them as his own proper goods, yet he shall ac∣count for them, Coke 11. part. 90. A. 33 Hen. 8.2. 35 Hen. 6.27. B. 18 Eliz. Dyer. 249. pl. 83. For such taking doth not devest them out of the Crown; for though he may have right, yet such taking is not the proper way to recover them.

The Account against a Receiver, 1. by other hands; 2. by his own hands.

[unspec 1] The Account was, that he was a Receiver till such a time, until, &c. within which time he re∣ceived of the moneys of the Plaintiff 10 l. by the hands of B, and 10 l. by the hands of C; for B and C here shall be accounted but as Servants to A, except the contrary be shewn, Lib. Intra. 19. C, & D. 1, 2, 3. fol. 20. A. Sect. 4.

Account of the Receipt of Moneys by the hands of the Wife and a Stranger not good, because they ought to have been several Issues, 43 Edw. 3.33. pl. 34. For the Receipt of the Wife is the Receipt of the Husband, and therefore as to her the account ought not to be per autre maine.

* 1.20But if the Account be of the delivery by the hands of the Wife of the Plaintiff, it had been good, 5 Edw. 3.146. pl. 6. Count of Bailment by the hands of a Servant of the Plaintiff, Hill. 4 Eliz. Com. Ban. Rott. 1707. Tresham versus Forde.

And so it is of the delivery of a Stranger, and the Wife of the Plaintiff, 43 Edw. 3.33. pl. 34.

Account that the Defendant sold a thing to A, and received 20 l. for it, and another thing to another, and received of him 10 l. this is nought, for the 10 l. and good for the remainder, 46 Edw. 3.3. pl. 6. Because it is not said to whom the other thing was sold; and so there can be no issue joyned.

* 1.21Baron and Feme count, that the Defedant fuit Receiver to the Testator from such a time to such a time, and received by the hands of B, &c. and did not account to the Testator neither to the

Executrix dum sola fuit, neither to them after the coverture. Lib. Intra. 20. A. Sect. 4.

[unspec 2] Account against a Husband upon the receipt of his Wife shall be by the Husbands own hands, Nat. br. 118. F. viz. the count shall be that the Husband receive it, for the receipt of the Feme is the receipt of the Baron.

Bar in detinue is a bar in account, per Brian. 2 Rich. 3.14. pl. 19,* 1.22 for the one and the other affirm property, and suppose a detainer.

The Defendant said,* 1.23 that the Plaintiff at the time, &c. was under covert Baron, and this was good, 6 Edw. 3.184. pl. 5. Vide 18 Hen. 6.3. pl. 3. 2 Hen. 7.15. for then she had no power to sue.

Delivery to another by the command of the Plaintiff Male,* 1.24 for it is too general; but to say, that he was Baily to the Plaintiff to deliver to B. of the which he had a deed, this is good; be∣cause he had not confessed it by the account ren∣der, this being special matter of justification. 19 Hen. 6.5. pl. 10. 26 Hen. 49. pl. 7. 30 Hen. 6 5. pl. 4. 41 Edw. 3.31. pl. 37. Lib. Intra. 20. A. Sect. 5.

Account against a Carrier, who said, that goods were delivered to him to deliver to B. which he had done without that he was Receiver in any o∣ther manner; this is a good bar, per custome d' Angleterre. Mich. 40, 41 Eliz. Com. Ban. Burrel versus Callice.

So if the plt. deliver to one 20 l. to carry to the Lombard to be exchanged, and he brings a Bill of exchange for the money and traverseth, without that, that he was a Receiver for account render, for by this he doth not confess the receipt for Account-render, 5 Hen. 5.4. pl. 10. 28 Hen. 6.9. pl. 1.

3 Hen. 6.4. pl. 4. but justifies by a special Receipt.

So if the Plaintiff deliver to one 20 l. to ob∣tain a discharge under the great Seal of the Cu∣stomes for 10 Hogsheads of Wine, the which he hath done; this is good, 30 Hen. 6.5. pl. 4. for the former reason.

Re-delivery to the plt. without acquittance not good,* 1.25 39 Edw. 3.19. pl. 21. for he confesses thereby the Receipt, and therefore it is reason he should account.

So if it be with an Acquittance, 3 Edw. 3.52. pl. 13. because by this he hath confessed the receipt for Account-render, and he may plead the Acquittance before the Auditors.

But this is good before Auditors, 29 Edw. 3.35. pl. 1. in discharge of the Account, though it was not good in bar of the Action.

The Defendant pleads, that he, as Messenger of the Plaintiff, received of C such a sum, being Provost to the Plaintiff, and this he paid and de∣livered to the Plaintiff, this is no bar to the A∣ction, because by the Receipt he is liable to the Account, 6 Edw. 3.185. pl. 7. 29 Edw. 3.20. pl. 11. but it may be in discharge of the account.

An account of a Receipt by the hands of B. 1. of May till the first of July;* 1.26 it is no plea that B was dead the third of May, because he may re∣ceive this the second of May. 8 Hen. 6.32. pl. 28. and so accountable by his own shewing.

A delivers 20 l. to B to redeliver;* 1.27 B binds himself to pay this; no bar in account, 4 Edw. 3.125. pl. 45. for the obligation is but additional security, and alters not the nature of the bail∣ment.

Defendant pleads,* 1.28 the Plaintiff being in his debt, commands him to receive of B so much to his own use as will satisfie his debt; which he doth without that, that he was his Receiver for Account-render, and good, Lib. Intra. 20. A, & B. sect. 6. 5 Edw. 4.29. B. Brian. For there is difference betwixt a receiving by way of satisfaction, which is to the Receivers use; and a Receipt per Account-render, which is for anothers use.

But if he confess the Receipt upon account, and he commands him afterwards to retain the debt, this is no bar of the Account by reason of his confession; 28 Hen. 6, 7. pl. 9.

No plea,* 1.29 that he was Factor and was Robbed, in bar of the Action; but a good plea before Audi∣tors, Coke 4. part. 84. A. 41 Edw. 2.2. pl. 9. in discharge of the Account; yet quaere, if he was robbed by the Kings Subjects.

Vendee and takes an obligation no bar, 28 Hen. 8. Dyer. 29. pl. 193.* 1.30 for that is for his own security that made the sale, and not the Owner of the goods.

Upon Receipt by others hands,* 1.31 a good plea that he was never Receiver by their hands, 10 Edw. 4.8. A. 7 Edw. 3.259. pl. 13. 8 Edw. 3.285. pl. 34. 7 Edw. 3.242. pl. 1. 24 Edw. 3.66. pl. 74. 25 Edw. 3.39. pl. 24. for this destroys the very gift of the action.

But 5 Edw. 3.159. pl. 22. this is not good; but shall say generally, that he never was his Receiver. Q. Car moy semble c'est n'est ley, si il soit charger come Receiver per autre maine.

If one testifie his Receipt by deed, he cannot plead, that he never was his Receiver, 10 Edw. 3.383.

pl. 18. for he is estopped by his own deed to plead so, the Law will believe a mans deed rather than his bare averment.

Defendant pleads, that he is Executor of B, and that he received the money as a debt of B; this is not good, because the Plaintiff supposeth him his Receiver; but he ought to say without that, that he received it as the money of the Plaintiff, 11 Hen. 4.79. pl. 20. 13 Hen. 4. pl. 1. for such a traverse doth destroy the Plaintiffs supposal.

Note, if the Receipt be by the hands of the Plaintiff, the Defendant may wage his law, 7 Edw. 3.269. pl. 52. viz. that he oweth him nothing, be∣cause it may be a thing acted in private betwixt them, where the Nay of the Defendant is as much to be credited as the Yea of the Plaintiff.

So upon the delivery of the Wife of the Plain∣tiff, 13 Hen. 4.8. 43 Edw. 3.33. pl. 31. for Hus∣band and Wife are one person in Law.

But upon a Receipt by other hands he cannot, 9 Eliz. Dyer 265. pl. 2. 22 Hen. 6.39. pl. 10. 5 Edw. 3.159. pl. 22. 33 Hen. 6.8. B. Moyle, because the Receipt lies in notice of the Countrey, upon which an issue may be joyned, and a trial had.

An Executor brought an Account upon the delivery of the Testator, the Defendant cannot wage his Law, 7 Edw. 3.269. pl. 52. for the delivery and the receipt was not acted betwixt them.

Outlawry of the Plaintiff after the Receipt a good bar,* 1.32 although he had a Charter of Pardon, 28 Edw. 3.92. pl. 10. for the Defendant is not bound to take notice of the Pardon until it be pleaded.

A good plea,* 1.33 that after the Receipt he married the Daughter of the Plaintiff, and it was then agreed, that he should keep the money, 12 Hen. 4.18. A. for by this agreement the former contract in Law is destroyed.

So if that he put the money in a bag, and a∣greed that he should keep it in licu of a debt, 28 Hen. 8. pl. 9. for the same reason.

* 1.34Delivery over by command of the Plaintiff, a good plea, 19 H. 6.5. pl. 10. Lib. Intr. 20. A. Sect. 5. 42. Edw. 6. pl. 21. for by this command the former trust is made void.

A Re-delivery is a good plea without an Ac∣quittance,* 1.35 because he cannot compel the Plaintiff to make an Acquittance, because he received but his own goods, 29 Edw. 3.35. pl. 1. 6 Edw. 3.185. pl. 7. 29 Edw. 3.20. pl. 11. but it seems it may be a good plea before Auditors. Q.

Expences reasonable shall be allowed to a Fa∣ctor,* 1.36 3 Edw. 3.56. pl. 30. for the labourer is wor∣thy of his hire.

A Factor pleads, that he was robbed, Coke 4. part. 84. A. Southcots case 41 Edw. 3.3. pl. 9. vid. Antea, Q.

So for goods lost by Tempest, 3 Edw. 3.56. pl. 30. 41 Edw. 3.3. pl. 9. For here is the hand of God, which could not be avoided, and there∣fore the party not to be punished.

So for goods sold under value, by reason of War, 3 Edw. 3.56. pl. 30. because of the necessi∣ty of the time.

* 1.37Defendant said, he received money in full sa∣tisfaction of a debt of another, &c. This was held void, because he did not name that he never was his Receiver, the which was sound before Hill. 43 Eliz. Com. Ban. Rott. 1707. Treshams case; so that his plea doth not answer the Plaintiffs Decla∣ration.

Vendee of goods takes an obligation in the name of the Plaintiff,* 1.38 a good plea, 28 Hen 8. Dyer 29. pl. 193.

But then he ought to shew that the obligor was sufficient to pay at that time, 3 Edw. 3.56. pl. 30.

The Judgment against a Receiver, 1. to Account; 2. to Recover.

2. The Judgment is, quod computet, & ideo in misericordia quia prius inde non computavit, Coke 11. part. 38. A. Metcalfs case, Lib. Intra 19. D. Sect. 1.

Quod computet for parcel, and bar for the re∣mainder, Lib. Intr. 22. A. Sect. 2. for if there be just cause to account for part, the Action is main∣tainable.

But if he confess part and traverse the other, no Judgment shall be till the other be tried, 41 Edw. 3. Account 34. for it may be he is to account for all notwithstanding his traverse, which may be false.

The Judgment is, Ideo consideratum quod prae∣dictus W. recuperet versus praefat. M, so much as he is found in Arcarages, & dampna sua occasione implacitationis, &c. Coke 11. part. 40. A. Metcalfs case.

The King is not held to bring a particular Ac∣count against any as Receiver, but to declare ge∣nerally, quod ille ad computum domino Regi red∣dend. tenetur: and against Executors, quod tene∣bantur tempore mortis suae, Coke 11. part. 90. De∣voushers case; for the King is not tied to pun∣ctualities of Law, where no person is injured by his not observance of them.

The Writ against a Receiver.

* 1.39Rex, &c. pr. A, quod juste, &c. reddat B ratio∣nabilem computum suum de tempore quo fuit Re∣ceptor denariorum ipsius B,* 1.40 &c. Regist. orig. 135. & ibidem B. vide diversa brevia de computo versus Re∣ceptorem.* 1.41

But there is another form of a Writ founded upon the Statute of Marlebridge, cap. 23. Nat. br. 117. H. Regist. orig. 136. B.

A good plea to the Writ, that he was Baily and not Receiver, for otherwise he shall be twice charged, viz. as Baily and Receiver, 3 Edw. 3.70. pl. 28. 18 Edw. 4.3. pl. 17. which the Law judges unreasonable, and will prevent by making the Writ certain.

A good plea to the Writ, that he was Guardian in Soccage, 18 Edw. 4.3. pl. 17. and so not pro∣perly a Receiver, as the Writ supposeth.

The Writ shall be always general, and if the cause be special, it shall be set forth in the Count, Nat. br. 118.* 1.42 F.

The Defendant pleads the Receipt by deed, and demands judgment of the Writ without shewing it, this is no plea to the Writ; because the Receipt and not the Deed is the cause of Action, and he

hath confessed the Receipt, and the Deed appears not to the Court, 1 Hen. 6.8. 28 Hen. 8. Dyer 20. pl. 121. But 9 Edw. 4.50. B. per Choke contra 2. Hen. 6.9. quaere.

No plea to the Writ, if it do not agree with the Plaintiff concerning the manner of the Re∣ceipt, 4 Hen. 6.12. pl. 4.

The Process against a Receiver, 1. before Ap∣pearance; 2. after.

At the Common Law the Process was but a distress infinite, Coke 3. part. 12. A. Harberts case.

But per Sat. de Marlebridge, cap 23. a Capias is given, Coke 3. part. 12. A. for more expedition; for Liberty is more precious than ones Estate in the eye of the Law.

And by Westm. 2. cap. 11. Process of Outlawry is given, Coke 3. part. 12. A. 17 Edw. 3. Process 203. 17 Edw. 3.59. pl. 55. Shard, 26 Edw. 3.5. pl. 13. which is a more violent prosecution to bring the Defendant to do right.

A Scire facias shall issue against Tenant per E∣legit to account, 21 Edw. 3.2. pl 6. 5 Edw. 3.159. pl. 20. Regist. Judicial, 73. B. Old Nat. br. 34. what profits he hath received out of the lands extended, and how far his debt is satisfied.

And if he come not upon Summons returned, Judgment shall be given against him, 5 Edw. 3.159. pl. 20. 21 Edw. 3.1. Quod computet.

Conusor of a Statute shall have a Scire facias against a Conusee to Account, Coke 4. part. 67. B 47 Edw. 3.11. pl. 9. & fol. 25. pl. 63.

So the Assignee of a Conusor, 25 Edw. 3.53. pl. 17. both for the former reason upon the Elegit.

But then he cannot surmize, that it was ap∣praised and found of base value, 17 Edw. 3.36. pl. 6. For by the bringing of the Action he admits of a certain value to account upon, and such a surmize is a matter dehors.

If a Receiver come in by a Capias or Exigend. he shall be forthwith committed to the Fleet, 29 Edw. 35. pl. 63. for his contempt in not coming in till compelled by force, which is a disturbance of the publick Peace,

So if he come in by distress, and the account be adjudged against him, 29 Edw. 3.35. pl. 63. for then it doth appear he was a Fort feasor.

But if the account be adjudged against him, and he be not present in Court, a Capias ad computan∣dum shall issue out, 1 Edw. 3.2. pl. 10. 1 Hen. 7.1. pl. 1. Townsend, Lib. Intr. 18. Sect. 1, 2, 3. to make it appear to the Court, whether he was to account or no.

If in Judgment given quod computet, the Plain∣tiff dies, the Executor shall have a Scire facias, which being served, if the Defendant appear not, an Exigend. shall issue forth against him, 14 Hen. 4.1.

But if the Defendant be taken per Capias ad computandum, and dies in prison, a Scire facias lies not against his Executors, 10 Edw. 4.7.41. Assize: So that a Scire facias lies for an Executor, but not against an Executor; for the Executor may not be so privy to the receipts and payments of the Testator, as to know what to plead to the Account.

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

The Defendant pleads, he bought the goods of the Plaintiff,* 1.43 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,* 1.44 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.

Execution against a Receiver, 1. per Common Law; 2. per Statute Law.

1. By the Common Law it was but a Levari facias, or Fieri facias, Coke 3. part. 12. A. Harberts case; to levy the arrears upon his Lands, or Goods and Chattels. Q.

And this only within the year; for if the year was past, then an Action of debt only lay upon the Judgment.

Unless the Process be continued, 33 Hen. 6.49. pl. 33. For the Court will not grant out Execu∣tions upon sleeping Judgments, for this may prove dangerous.

2. Per Westm. 2. cap. 45. a Scire facias is given

after the year, Coke 3. part. 12. A. upon the Judg∣ment against the Defendant, to shew why he should not pay the Arrears due to the Plaintiff by the Judgment.

Per Marlebridge, cap. 23. & Westm. 2. cap. 11. a Capias was given in Process, and by consequence a Capias ad satisfaciendum in execution, Coke 3. part. 12. A. Lib. Intra. 18. C. Sect. 1, 2, 3. which are both to lay hold on the person of the Defendant.

Per Westm. 2. cap. 11. if the Accountant before Auditors be found in Arrearages, he shall be com∣mitted by them to the next Goal in execution: the same law is, if he will not account before the Au∣ditors, 10 Edw. 3.387. pl. 28. when he is adjudged by the Court to do it.

But this shall be forthwith, Coke 8. part. 119. B. Bonhams case, 27 Hen. 6.8. Com. 17. for the Sta∣tute being penal must be strictly pursued.

But if he account before the Plaintiff he can∣not commit him to Prison; for the Statute saith before Auditors, 45 Edw. 3.14. pl. and no impri∣sonment lay before the Statute.

But an Accountant to the King shall be impri∣soned, and his goods and lands in execution per the Common Law, Coke 3. part. 12. B. 5 Eliz. Dyer 224. Com. 32. which is tender of the King as well in his Revenue as his Person.

Ex parte talis.

Per Westm. 2. cap. 11. if Auditors be assigned by the party Plaintiff, who will not allow reasonable charges to the Receiver, or charge him with a thing he never received, and then commit him to prison, he shall have this Writ, Nat. br. 129. F. 4

Hen. 6.18. A. pl. 3. Regist. orig. 137. B. which is in the nature of an Audita querela.

But if Auditors be assigned by the Court which do not make allowance; yet the Defendant shall not have this Writ, but may complain to the Court, and they shall order them, Nat. br. 129. E. 3 Edw. 3.56. pl. 30. to do justice; for they are Ministers of the Court, and to be answerable for their actions.

If one be sued in London, and the Court assign Auditors, who make not allowance, &c. the Defen∣dant shall have this Writ, Nat. br. 129. F. But note Regist. orig. 137. contra, Q.

The Writ shall be returnable before the Trea∣surers and Barons in the Exchequer at a certain day, and a Scire facias in the Writ to warn the Plaintiff in the Account, and also the Defendant to be there, Nat. br. 129. G, & H. Regist. orig. 137. vid. Westm. 2. cap. 11.

Note, that an account lieth in one Writ against a Baily and Receiver, Nat. br. 116. P. 21 Hen. 6.21. pl. 42. 9 Edw. 3.356. pl. 38, & pl. 40. 14 Hen. 4.20. pl. 25. vide the Writ Nat. 117. C. Regist. orig. 135. For one and the same person may be Baily and also Receiver at one time to one and the same person.

Vide the Count, Lib. Intra. 17. B. Sect. 1.

And for all the other parts they are in the same manner as is described before in Baily and Recei∣ver.

Notes

• * 1.1

  2. After ap∣pearance.
• * 1.2

  1. To Ac∣count.
• * 1.3

  Ʋnder-Baily.
• * 1.4

  Dep••ty.
• * 1.5

  Account for the Major and Aldermen of Lon∣don.
• * 1.6

  Lunatick.
• * 1.7

  Executor.
• * 1.8

  2. Baily in Law.
• * 1.9

  In Comi∣tasu.
• * 1.10

  In Banco.
• * 1.11

  Account before Auditors.
• * 1.12

  No bar.
• * 1.13

  Property.
• * 1.14

  Payment.
• * 1.15

  Servant.
• * 1.16

  Statute-Merchant.
• * 1.17

  Vendee.
• * 1.18

  King.
• * 1.19

  Executor.
• * 1.20

  Note the difference between the ballment of the Wife, and the Receipt of the Wife.
• * 1.21

  Viz. an Executrix,
• * 1.22

  Bar.
• * 1.23

  Coverture.
• * 1.24

  Delivery.
• * 1.25

  Redelive∣ry.
• * 1.26

  Mort.
• * 1.27

  Obligati∣on.
• * 1.28

  Payment.
• * 1.29

  Robbery.
• * 1.30

  Vendee.
• * 1.31

  Unison Receiver.
• * 1.32

  Outlawry.
• * 1.33

  Accord.
• * 1.34

  Delivery and Re∣delivery.
• * 1.35

  Re-delive∣ry.
• * 1.36

  Expences.
• * 1.37

  Receipt in Satisfacti∣on.
• * 1.38

  Vendee.
• * 1.39

  In Comita∣tu.
• * 1.40

  In Com. Ban.
• * 1.41

  Writat the Com. Law, by the Stat. of Marleb. cap. 29.
• * 1.42

  Q.
• * 1.43

  Bought.
• * 1.44

  Accord.