executors or administrators of a guardian, bailiff, or receiver.

This action does not lie against an infant (6); nor by one executor against another', for the possession of the one is the possession of the other.

II. Of the Pleadings and Evidence.

THE defendant may plead in bar to this action", that he was never bailiff or receiver, or that he has fully accounted, or any matter, which tends to shew that he was never accountable: or a release.

When the plaintiff charges the defendant as receiver from such a time to such a time", the defendant must answer the whole time (7) precisely (8).

By stat. 21 Jac. 1. c. 16. s. 3. actions of account (other than such accounts as concern the trade of merchandize between merchant aud merchant, their factors, or servants) must be commenced and sued within six years next after the cause of action.

If the defendant plead, that he was never receiver, he

k 1 Inst. 88. b. 1 Inst. 172. a.
IF N. B. 271. 4to. edit. note (f).
m 1. R. A. 121. vet. Intr. 16. Rast.
Entr. 17. 19. 21.

n Southcot v. Rider, T. Raym. 57. o 2 Roll. Abrid. 693. (F). pl. 1.

(6) Hence an infant cannot be guardian in socage. 1 Inst.

88. b.

(7) It is a general rule in pleading, that the plea must answer every material part of the declaration. If a plea begin with an an swer to the whole, but in truth the matter pleaded be only an answer to part, the plea is bad, and the plaintiff may demur; but if the plea begin as an answer to part, and is in truth an answer to part only, it is a discontinuance, of which the plaintiff may take advantage; the plaintiff, however, ought not to demur in this case, but to take his judgment for the part unanswered by nil dicit; for if the plaintiff demurs, or pleads over, the whole action is disconti nued. 1 Roll's Abrid. 487. pl. 10.-Weaks v. Peach, 1 Salk. 179. Market v. Johnson, 1 Salk. 180.-Vincent v. Beston, 1 Lord Raym. 716.-Peers v. Henriques, 2 Lord Raym. 841.-Gilb. Hist. C. B.

155. 158.

(8) Money cannot be paid into court in this Action, per Willes, C. J. Bull. N. P. 128.

cannot give in evidence a bailment to deliver to another person, and that he has delivered accordingly: for though this special matter prove that he is not accountable, yet, as upon the delivery, he was accountable conditionally, (viz. if he did not deliver over,) the evidence does not support the plea.

So a release cannot be given in evidence under the plea, that the defendant was never receiver.

In account against the defendant as receiver by the hands of A, it is suficient for the plaintiff to prove that A directed the defendant to borrow of another to pay the plaintiff; that the defendant borrowed accordingly, and that A gave bond to the lender,

1. THERE are two judgments in this action:-the first judgment is, that the defendant do account', usually termed a judgment quod computet (9). This is in the nature of an award of the court, interlocutory only, and not definitive", and whereon a writ of error does not lie. It is, however, essentially necessary that this judgment should be entered', for where the defendant pleaded that he had fully accounted, and issue being joined thereon, the jury found for the plaintiff, and assessed damages and costs, and judgment was entered accordingly, and execution taken out; the court, on motion, set aside the judgment and execution, observing that the judgment was wrong, for it ought to

p Willoughby v. Small, 1 Brownl. 24.
q Harrington v. Deane, Hob. 36.
r Co. Eut. 46. b. Rast. Ent. 17.

s Metcalf's case, 11 Rep. 38. a.
t Hughes v. Burgess, Ca. Temp. Hard.
394.

(9) The form of this judgment, in the case of Godfrey v. Saunders, 3 Wils. 88. was as follows:-" therefore it is considered that the defendant account with the plaintiff of the time aforesaid, in which he (defendant) and the said S. S. were the bailiffs of the plaintiff, and had the care and administration of the aforesaid goods and merchandises, &c. to be merchandised and inade profit of for plaintiff; and the defendant in mercy, &c. because he bath not before accounted, &c."

have been only a judgment to account; and they compared the irregularity in this case to the irregularity of signing final judgment before interlocutory judgment. After the judgment to account, the defendant usually offers to account, and, thereupon, the court assigns auditors to take and declare the account between the parties. The auditors assigned, are, in general, some of the officers (10) of the court, who may convene the parties before them from day to day, until the account is determined. If the auditors find the parties remiss and negligent, they must certify to the court that they will not account. By stat. 4 Ann. c. 16. s. 27. the auditors are empowered to administer an oath, and examine the parties touching the matters in question, and for the trouble in auditing and taking such account, shall have such allowance as the court shall judge reasonable, to be paid by the party on whose side the balance of account shall be.

Special bail is not to be found until after the judgment to account (11). If the defendant', after the judgment to account, does not personally appear in court to give bail to account, there must issue a capias ad computandum for the purpose of bringing him into court.

With respect to pleading before the auditors, the following rules are to be observed: 1. In order to avoid trouble and charge to the parties, what might have been pleaded in bar to the action shall not be allowed as a discharge before the auditors. 2. If the party is once chargeable and accountable, he cannot plead any matter in bar, except a release, or plene computavit; but must plead before the auditors. The exceptions proceed on this ground, that a release, and the having fully accounted, are total extinctions of the right of action, of which the court is to judge; and even in these cases they must be pleaded specially, and cannot be given in evidence on ne unques receivor. 3. No

u Williams v. Lee, 1 Mod. 42. See
the form, 3 Wils. 89.

x Reeves v. Gibson, 1 Lev. 300.
y Chester v. Hunt, C. B. M. 13 G. 2.

z Taylor v. Page, Cro. Car. 116. 3 Wils. 113. S. P.

a 3 Wils. 113. 114.
b 1 Brownl. 24. 25.

(10) In Godfrey v. Saunders, C. B. E. 10 G. 3. 3 Wils. 73. the three prothonotaries were assigned auditors.

(11) It was said by all the prothonotaries in the Court of Common Pleas, that the defendant upon the first writ should not be held to special bail, yet, in special cases, by the discretion of the court, he shall find bail. Noy, 28.

thing can be pleaded before the auditors contrary to what has been previously pleaded and found by verdict, because the consequence would be, either two contradictory verdicts, which would perplex the court, or two similar verdicts, which would be nugatory. 4. If the defendant plead, before the auditors, any matter in discharge, which is denied by the plaintiff, so that the parties are at issue, the auditors must certify the record to the court, who, thereupon, will award a venire facias to try it; and if on the trial the plaintiff make default, he shall be non-suited; but, notwithstanding the non-suit, he may bring a scire facias upon the first judgment.

2. The final judgment is, that the plaintiff do recover against the defendant so much as he, the defendant, is found in arrear (12). A writ of error lies upon this last judgment only; but, although it be found erroneous, and reversed, the first judgment shall stand in force; for the two judgments are distinct and perfect (13).

IV. Execution.

IT is not unworthy of remark, that this action is the first of a civil nature in which process of execution against the person was given. This process is given by stat. Westm. 2. 13 Edw. 1. c. 11.; but, under this act, the guardian in socage cannot be committed to prison, for he is in loco parentis, and the words of the statute are de servientibus, balivis, &c.

c 3 Wils. 114.

d Bull. N. P. 128.

e Metcalf's case, 11 Rep. 40. a.

(12) The form of this judgment for the plaintiff upon demurrer to plea before the auditors, in Godfrey v. Saunders, 3 Wils. 94. was as follows: "Therefore it is considered, that the plaintiff do recover against the defendant the aforesaid 12,000l. (the sum laid in the declaration) for the value of the goods and merchandises aforesaid, and also 2781. 7s. 9d. for his damages, as well by reason of the interpleading aforesaid, as for his costs and charges by the plaintiff, in and about his suit in that behalf expended, to the said plaintiff by the court here adjudged with his assent; and that the said defendant be in mercy, &c."

(13) The reader, who is desirous of further information concerning the nature of this action, is referred to the record and proceedings in the case of Godfrey v. Saunders, 3 Wils. 73.

(8)

CHA P. II.

OF ADULTERY.

I. Of the Remedy for this Injury, and in what Cases may be maintained.

an Action

II. Of the Venue-Declaration-Plea.

III. Of the Evidence, and herein of the Marriage Act, 26 G. 2. c. 33.

IV. Of the Damages.

I. Of the Remedy for this Injury, and in what Cases an Action may be maintained.

IN ancient times adultery was inquirable in tourns and leets, and punished by fine and imprisonment; but at the present day this offence belongs to the ecclesiastical courts, and the temporal courts do not take any cognizance of it as a public wrong. Several attempts, indeed, have been made by the legislature to bring this offence within the pale of criminal jurisdiction, but they have, for the most part, been wholly ineffectual (1). During the time of the commonwealth, in the year 1650, when, as Blackstone justly remarks, the ruling powers found it for their interest to put on the semblance of a very extraordinary strictness and

(1) In the year 1604, (2 James I.) a bill was brought into parlia ment" for the better repressing the detestable crime of adultery." This bill was committed, but when the report was made by the committee, the Earl of Hertford said, that they found the bill rather concerned some particular persons than the public good, whereupon the bill was dropped. See 5th vol. of Parl. Hist.