(F) of the Auditors, and what shall be a good Discharge, &c. account. F. N. B. 129.] ||Two principal officers of the Court of King's Bench were on motion appointed auditors after a judgment quod computet. Smith v. Smith, 2 Chitt. R. 10; Archer v. Pritchard, 3 Dow. & Ry. 596. The rule to appoint auditors is absolute in the first instance. Ib. [2 Inst. 381. (a) All articles of account, though incurred since the writ, shall be included, and the whole brought down to the time when the auditors make an end of their account; per Ld. Mansfield, 2 Burr. 1086.] BA judgment quod computet does not conclude the defendant as to the dates or sums mentioned in the declaration; but the auditors may make the proper charges and credits without regard to the verdict. Newbold v. Sims, 2 S. & R. 317. If the matters offered by the defendant before the auditors are disputed by plaintiff, he may demur or take issue. These demurrers or issues are certified by the auditors to the court, where the matter of law is decided by the court, and of fact by a jury; which being returned to the auditors, they report an account accordingly. If either party has cause of complaint against the auditors, redress is to be had by application to the court. Crousillat v. M'Call, 5 Binn. 433. Their report must always state a special account. 4 Yeates, 514. In all cases of dispute before auditors, the exception must be taken before them, and certified as above; it cannot be taken after report. 5 Binn. 433. On the trial of the issues certified by the auditors, the plaintiff cannot give in evidence moneys received before the time laid in the declaration. Sweigart v. Lowmarter, 14 S. & R. 200. ♬ð Whatever may be pleaded to the action shall never be allowed of as a good discharge before the auditors; therefore, where in accompt the defendant plead never his receiver, &c., and this being found against him, he was adjudged to account; and before the auditors he pleaded a submission of all debts, accounts, &c., to J S, who awarded that the defendant should pay 107. only in discharge of all debts, accounts, &c., which he paid accordingly; this was holden no good plea; for this award, made before the action brought, ought to have been pleaded in bar thereof; which being omitted, he hath lost the advantage thereof, and shall not plead it before auditors. Leon. 219. [3 Wils. 113. The reason is, to avoid trouble and charge to the parties. Cro. Car. 116, Taylor v. Page; Hetl. 114, S. C.] [Nothing can be pleaded before auditors contrary to what has been pleaded to the action, and been found by verdict; where, therefore, a defendant charged as surviving bailiff of goods delivered to him and his co-bailiff to be merchandised, and to render an account, had gone to issue upon this fact, namely, whether upon his delivering over the goods to the deceased bailiff, all his (the defendant's) concern in the trust, care, and management thereof ceased and was at an end; which issue was found against him: it was holden, that he could not plead afterwards before auditors that he delivered the goods over to the co-bailiff with the consent of the plaintiff; for this matter might have been given in evidence upon the former issue; and the consequence of admitting it to have been put in issue before auditors would have been, either two verdicts the same way, which would have been nugatory, or two contradictory verdicts, which would have entangled the court so much that they would not have known what judgment to give. Godfrey v. Saunders, 3 Wils. 114. The defendant may plead payment to the plaintiff without showing an acquittance.] 41 E. 3, 25. It is a good discharge before auditors, for a factor to say, that in a tempest, because the ship was surcharged, the goods were cast over board into the sea. Roll. Abr. 124; Bro. tit. Account, 10. (G) Of the Judgment, and the subsequent Proceedings. So, it is a good discharge before auditors, that he was robbed of the goods without his default or negligence. (a) Co. Lit. 89. (a) Or that he put them in a warehouse, from whence they were taken by an enemy. Stra. 680. It is a good discharge before auditors in accompt as a receiver of 107. if he tenders the 107. (b) and swears that after the time that the money was delivered him, he found that he durst not buy for fear of loss: for he is not obliged to run any hazard himself. Roll. Abr. 124. (b) This must be understood of one who receives money to trade and merchandise therewith; for no other receiver is in any case obliged to buy or sell. Roll. Abr. 124. Quære, Whether such oath be necessary; and vide 2 Mod. 101; 1 Bulst. 104; Eq. Ca. Abr. 369; 2 Vern. 638; 3 Wms. 185, 187, 279; 10 Mod. 144; 12 Mod. 514, 602. [It seems that the defendant may, in some cases, purge himself by his own oath. The statute of 4 Ann. c. 16, § 27, gives the auditors a power in the cases there provided for, of administering an oath, and examining the parties. Fitz. Abr. Accompt, p. 40; Bro. Accompt, p. 66; 2 Mod. 101.] If a bailiff of a manor receives the rents and profits of the tenants, and retains them two or three years, yet in a writ of accompt he is not to account for the profits thence arising in the mean time, for he had not any warrant to merchandise with the money, or to gain or lose thereby. Roll. Abr. 125. Vide 5 Binn. 568. g If in accompt the defendant pleads before auditors, that the goods for which he is to account were bona peritura, and, notwithstanding his care in keeping them, were worse, and that they remained in his hands for want of buyers, and were in danger of growing worse, and that, therefore, he sold them upon credit to a man beyond sea; this is no good plea, for a factor cannot sell even bona peritura upon credit, (c) without a particular commission so to do. (d) 2 Mod. 100, and the above authorities. (c) Nor pawn. 2 Stra. 1187. (d) Factors now have usually such commission. [The defendant cannot in an action of account pay money into court, as he may in an assumpsit. Bul. Ni. Pri. 128. If the plea of plenè computavit be found against the defendant, he shall account before the auditors for the whole money he is charged with, for this plea admits the receipt of the whole. 1 Lutw. 63. @ See Newbold v. Sims, 2 S. & R. 317. It is the province of the auditors to weigh the evidence and investigate the facts, and determine thereon, and a report will not be set aside for a mistake of facts. Parker v. Avery, Kirby, 353; Wood v. Barney, 2 Verm. 369. The report of the auditors must be certain. Spencer v. Usher, 2 Day, 116; Thomas v. Alsop, 2 Root, 12. And such report must state a special account. Finney v. Harbeson, 4 Yeates, 514. Exceptions must be made before the auditors, and cannot be taken after the report has been returned. Crousillat v. M'Call, 1 Browne, 226; 5 Binn. 433; 4 Yeates, 358; 3 Binn. 475. Vide 2 South. 791; 2 Root, 121. (G) Of the Judgment, and the subsequent Proceedings. In this action, as is above mentioned, there are two judgments; the first is quod computet; and afterwards, when the account is finished, the second judgment is, that the defendant pay the plaintiff so much as he is found in arrear. (e) Upon the first judgment a capias ad computandum lies, and if a non est inventus be returned upon it, an exigent issues. It is usual to bail the defendant, if he be taken on the capias, though, by the rigour of the law, he is to account in prison. (G) Of the Judgment, and the subsequent Proceedings. 1 Brownl. 24; Cro. Eliz. 806; 3 Black. Com. 163. A judgment quod computet is interlocutory, and is consequently within the control of the court; it may be opened at a term after it was entered. 4 Wash. C. C. R. 84. A writ of error does not lie on such judgment. Beitler v. Zeigler, 1 Penna. R. 135. Vide 2 Watts, 95. (e) Where final judgment was entered in the first instance, the Court set it aside upon motion, as irregular. Hughes v. Burgess, B. R. H. 394; Andr. 19, S. C. If the defendant make default after the interlocutory judgment, at the day assigned by the auditors, final judgment shall be entered for the sum demanded by the plaintiff. So, if there be judgment on demurrer to an insufficient plea before the auditors. Cro. Eliz. 806; 3 Wils. 117; Co. Lit. 139, b.; 11 Co. 39; 27 E. 3, 87; 2 R. A. 131, p. 4. It seems to be questionable, whether, in all cases, damages are recoverable in account; but it is clear that if the defendant resists the plaintiff's claim by pleading, or an increase is received by a receiver, ad merchandizandum, there shall be judgment for damages. Jenk. 288; 1 Roll. Abr. 575; 1 Leo. 302; 2 Leo. 118; 3 Wils. 117; 35 Binn. 568, ace. It hath been holden, that the first judgment is not such as can be revived by scire facias upon the death of the plaintiff, before the account taken, (a) or as a writ of error can be brought upon; and yet the plaintiff cannot be nonsuited after it. 21 E. 3, 9, 32, 41; Ass. 11. (a) Vide Danv. 233. After final judgment, the plaintiff may pray that the defendant's body be taken in execution; or he may pray an elegit, if he refuses the body. See the writ to the gaoler to receive the defendant after final judgment. Reg. 137.] Lutw. 51. The rule that a party cannot recover a greater amount than the sum demanded in his declaration, does not apply to the account render; therefore, where the auditors reported that the defendant was in arrear to a greater amount than the sum so demanded, it was held to be good. Gratz. v. Phillips, 5 Binn. 564. When the plaintiff in his declaration lays the value of the chattels and also damages, when the judgment is rendered in his favour, it ought to be for the value, and also for damages, distinguishing each. Id. 568. Auditors may report a balance in favour of the defendant. Dickerson v. Whittlesay, 2 Root, 121. Quære, whether judgment can be entered on such a report? 5 Binn. 433; 3 S. & R. 7.9 ACCORD AND SATISFACTION. ACCORD is an agreement between two persons at least to give and accept something in satisfaction of a trespass, &c., done by one to the other. This agreement, when executed, may be pleaded in bar to an action for the trespass; for in all personal injuries, the law gives damages as an equivalent; and when the party accepts of an equivalent, there is no injury or cause of complaint, and therefore present satisfaction is a good plea: but, if the wrongdoer only promise a future satis (A) What shall be deemed a good Accord and Satisfaction. faction, the injury continues till satisfaction is actually made, and, consequently, there is a cause of complaint in being; and if the trespass were barred by this plea, the plaintiff could have no remedy for the future satisfaction, for that supposes the injury to have continuance. 5 E. 4, 7; Plow. 5, b; Roll. Abr. 129. (A) What shall be deemed a good Accord and Satisfaction. (B) To what Actions may Accord and Satisfaction be pleaded. (C) of the Form and Manner of pleading Accords. (A) What shall be deemed a good Accord and Satisfaction. AN accord must appear to be advantageous to the party, (a) otherwise it can be no satisfaction; therefore in an action of trespass for taking the plaintiff's cattle, it is no good plea to say, that there was an accord that the plaintiff should have his cattle again; for this is not any satisfaction. 9 E. 4, 19; Roll. Abr. 128. [(a) Vide Perk. § 749; Dy. 75; @ Keeler v. Neal, 2 Watts, 424. In the case of Cumber v. Wane, Stra. 426, it was said by the court, that the satisfaction must appear to them to be a reasonable one; at least, that the contrary must not appear; that, consequently, payment of a less sum could never be admitted as an accord and satisfaction for a greater.] So Pinnel's case, 5 Co. 117; and Fitch v. Sutton, 5 East, 231. But, if it was to drive them to a certain place, so that it would be a charge to him to do it, this would make it a good accord. 2 Roll. R. 96. In covenant against the executor of tenant for life, &c., he pleads an accord that he should quietly depart, and leave the possession, &c., and holden good; though after the death of tenant for life he had no interest, but a license in law only to carry away his goods. Yelv. 124, per three judges against one. A mutual agreement to discontinue two cross suits, acted on accordingly, is a good accord. Foster v. Trull, 12 Johns. 456. So an agreement to accept a collateral thing in satisfaction, if executed by delivery, is a good accord. Anderson v. Highland Turnpike Co., 16 Johns. 86. An accord executed is a good bar; Watkinson v. Ingelsby, 5 Johns. 386; Cort v. Houston, 3 Johns. Cas. 343, but not, if not executed. 16 Johns. 86. {It must also be legal. In an action of trespass for an assault and false imprisonment against justices of the peace, they pleaded a charge preferred before them against the plaintiff for a misdemeanor; that he was committed for want of sureties till the next sessions; and that before the next sessions, it was agreed between the prosecutor and plaintiff, with the consent of the defendants, that the prosecution should be dropped, and the plaintiff discharged at the sessions for want of prosecution, in full satisfaction and discharge of the assault and imprisonment; that the plaintiff was accordingly discharged, and accepted the discharge, &c., in full satisfaction, &c. On demurrer, the plea was held to be bad, because the facts stated in it did not amount to a legal satisfaction of the trespass. If the plaintiff was guilty, public justice had been defeated; the agreement to his discharge for want of prosecution was illegal and void; } and the defendants could claim no advantage from it. If he were innocent, then he would have been entitled by law to his discharge, and he received no benefit from the defendants in satisfaction of the wrong done to him. The plea was said to be bad on another ground; that the satisfaction, if any, moved altogether from the prosecutor; and satisfaction from a stranger {2} is no satisfaction in law. { {5 East, 294, Edgcombe v. Rodd & others.} {} 2 Wils. 341. {2} See. Cro. Eliz. 541; Rol. Abr. 471.} (A) What shall be deemed a good Accord and Satisfaction. Though the acceptance of a less sum is not alone a good accord and satisfaction of a greater, since there is no consideration for giving up the rest of the debt, (it makes no difference that there is a promise by the debtor to pay the residue when able,) yet certain other additional advantages moving to the creditor, have been held to render the agreement on his part to accept the less sum binding. Pinnel's case, 5 Coke R. 117; Cumber v. Wane, Stra. 426; Fitch. v. Sutton, 5 East, 231; and see 2 Barn. & C. 477. Payment of a less sum, after the debt is due, in satisfaction of the debt, is not good by way of accord. Johnston v. Branvan, 5 Johns. 271; Harrison v. Close, 2 John. 448; Doderick v. Lehman, 9 John. 333; Seymour v. Minturn, 17 John. 169; see also, 2 Litt. 49; 4 Litt. 242; 2 John. 448; 14 Wend. 100; 3 Hawks, 580; 1 Stew. 476; but payment of less than the whole debt, if made before it is due, or at a different place from that stipulated, when accepted in full, is a good satisfaction. Smith v. Brown, 5 Hawks, 580; Jones v. Bullitt, 2 Litt. 49. Thus, where the debtor entered into an agreement (not sealed) with his creditors, whereby they agreed to receive 20l. per cent. in satisfaction of their several demands, and released the remainder in consideration that half the sum should be secured by the acceptances of a certain other person, also a creditor, which security was accordingly given and paid when due; it was held that such agreement was binding on the plaintiff, one of the creditors. Here the security given by the surety for half the composition was a beneficial consideration moving to the plaintiff and all the creditors, and as the surety was only induced to give it on the faith of the defendant being discharged from the remainder of the debts, the court considered it a fraud upon the surety, as well as on the other creditors, that the plaintiff should sue for the residue of the debt. Steinman v. Magnus, 11 East, 390; Lewis v. Jones, 4 Barn. & C. 513; and see Boothbay v. Sowden, 3 Camp. 174; Cork v. Saunders, 1 Barn. & A. 46. So, although a mere agreement between the debtor and his creditors that they will accept a composition in satisfaction of their respective debts, is not a good accord and satisfaction pleadable to an action brought by one of the creditors, to recover his whole demand, yet it seems that if the debt be ascertained by the agreement and a fund provided, and all the creditors are bound to forbear, the agreement constitutes a good plea. So, also, (it seems) if the debtor assign over all his effects to a trustee for equal distribution among his creditors, for this is a good consideration for the promise of each not to sue. Heathcote v. Cruickshanks, 2 Term R. 24, and see 2 H. Black. 317; 2 Term R. 24, and see 3 Camp. 174; 35 John. 386; 13 Mass. 427; 10 Wend. 473. And if all the creditors verbally agree to accept a composition, partly to be secured by acceptances of a third party, and partly by the debtor's own notes, and to execute a deed with a clause of release, and if all the creditors but one sign the deed, and the acceptances and notes are duly tendered to such one creditor, and he then refuses to receive the bills or to execute the deed, it has been held he cannot sue the debtor for his original debt. Lord Ellenborough held that the agreement was executed by the signing of the other creditors, and the tender of the bills, and that it was a good accord and satisfaction. Bradley v. Gregory, 2 Camp. 383; and see 1 Esp. Ca. 236; 6 Term R. 263. It has been held a good plea in assumpsit, for goods sold, &c., that the defendant, being payee of a promissory note, endorsed it to the plain |