Therefore, if iffue were to be taken upon delivery over by confent, it would be immaterial; being no matter of fact to be tried by a jury, but a matter arifing by implication of law: and indeed no evidence would have been neceffary to prove fuch confent on the part of the defendant; nor could the plaintiff have denied it; because by making them joint bailiffs he gave fuch confent originally.

Nothing therefore is to be concluded from this plea, unless it is meant to be pleaded by way of difcharge; now that which is implied in the contract itfelf, can never be pleaded in discharge of that contract.

The defendant and another perfon are intrufted with goods to merchandize, a confidence is placed in both, they accept the truft jointly, and jointly confide in one another; they are anfwerable one for the other; the receipt of one is the receipt of the other, each of them has an authority to intermeddle with the whole: how then can the delivery over by the defendant Saunders to Salomons, though with the exprefs confent of the plaintiff, the confignor (which confent being no more than the law implies, operates nothing) difcharge the defendant Saunders from being liable to account? who has undertaken to account, as well for his companion's acts and receipts as his own.

Befides, if there be two joint bailiffs, one cannot be discharged without the other, for a discharge of one is a discharge of both; fo is Bro. Charge, pl. 49. and a release to one joint-obligor may be pleaded by the other. Co. Lit. 232. a. Therefore, if the defendant Saunders was difcharged at the time when he left the Eaft Indies, Salomons must then be alfo difcharged; and it would be a new and extraordinary mode of difcharge, if the very receipt of the whole effects by Salomons, from the defendant Saunders, was to operate as an exemption to both, from all obligation to account for them.

This differs widely from a payment or delivery to the plaintiff himself, or to a ftranger by his command, which is a good plea in difcharge before the auditors; because that is in reality accounting with the plaintiff himfelf; but where one joint bailiff pays or delivers over to his companion, for whofe receipts he was always anfwerable, it is no accounting with the Principal, and therefore, of course, that one joint bailiff remains equally accountable as he was before.

2. But if this confent operate at all, and be any plea, it ought to have been pleaded in bar to the action, it amounts to plené computavit;

computavit; for the defendant by infifting that he delivered over all the goods, merchandizes, produce, &c. to Salomons with the confent of the plaintiff, at fuch a day he [defendant] infifts, that he was no longer accountable to the plaintiff, which is, in effect, faying, that he has accounted.

Although a plea by a defendant in account, admitting himself once chargeable, which goes in difcharge, is to be pleaded before auditors, and not in bar to the action, yet that is only where he is charged as receiver to account; but where he is charged as bailiff for time, then, by a plea of this fort, he doth not admit himself to have been ever chargeable for the refidue of the time, after the delivery over, and therefore is a plea in bar, as to fo much of the time; if therefore he had pleaded it in bar, and it had been found for him, he could not have been found bailiff to account for any part of the time after; and where one omits to plead in bar, a matter which goes in bar of the account, he fhall not afterwards plead it before the auditors. Abr. 126.

1 Rol.

3. This plea before the auditors contradicts the verdict of the jury. Suppofe a delivery over by the defendant Saunders to his co-bailiff Salomons, with the confent of Godfrey the plaintiff, might in fome cafes, be a good plea, in difcharge of the account before the auditors, yet it cannot be fo in any cafe where it is contradictory to the verdict, which hath been found upon the plea, that was pleaded in bar to the action.

Now here, it directly attacks and impugns the finding of the jury, upon both the first and laft iffucs: on the firft, it is found that the defendant and Salomons were joint bailiffs, from the 1ft of June 1754, until the 1ft of May 1755 (and here the time is material; for where the defendant in account is charged with having been bailiff or receiver, from fuch a time until fuch a time, he must answer the time precifely. Southcot verfus Rider. T. Raym. 57.) but now the defendant Saunders claims to be dif charged from accounting, from the time he ceafed to be governor of Fort Saint George in the East Indies, which he alledges was in January 1755; fo that although the jury have found him. to be bailiff, and liable to account until May 1755, he now fays, and infifts, he ought not to account for any longer or further time than until the 14th of January preceding.

This plea before the auditors (if poffible) is more directly contrary to the finding of the jury on the laft iffue; for the defendant, in his rejoinder to the replication to the third plea in bar, alledges, that on delivering over of the goods to Salomons, &c.

all

1

all his (the defendant's) concern in the truft ceafed and was at an end; this is denied by the plaintiff in his fur-rejoinder; and the jury have found, that on fuch delivering over to Salomons by the defendant Saunders, all his concerns in the truft did not ceafe nor was at an end: and now, in his plea before the auditors, he prays to be discharged from the time of fo delivering over the goods. Why? becaufe (as he fays) by delivering them over with the confent of the plaintiff, all his (the defendant's) concern did at that time, ceafe and was at an end. The only difference in the two pleas is, that by the plea in bar he infifts, that by the bare delivery over, all his concern in the trust ceased; and by his plea in discharge before the auditors, he infiits, that by the delivery over with the confent of the plaintiff, all his concern in the trust ceased: but the jury have found, that his concern in the truft did not then cease; so that if an iffue was to be joined upon this confent, either the fame, or a contradictory verdict, must be the confequence; i. e. the jury muft find, that his concern in the trust did or did not ceafe, on the delivery over of the goods to Salomons: but fuch an iffue, which will endanger a contrary verdict if found one way, and will be nugatory (by being the fame) if found the other way, will not be endured by

the court.

If the plaintiff's confent was material in the delivery over, and upon fuch confent the defendant is intitled to be discharged from accounting; it would have been proper evidence to have been given upon the trial of the former iffue, and if fuch confent had been proved, it would have proved the iffue for him; i. e. that the defendant's concern in the truft ceafed upon the delivery over; but the verdict having found it did not then cease, it hath found there was no fuch confent.

This is like the cafe of Hughes verfus Drinkwater. Hutt. 133. which was an action of account by Hughes against Drinkwater, for receipt of 18. by the hands of one William Appowell, to the ufe of the plaintiff; the defendant pleaded, ne unques receivor per manus, &c. and found for the plaintiff: and the defendant before the auditors pleaded, that he, by the appointment of William Appowell, had paid it to one John Marsh, for the debt of the plaintiff; and, upon demurrer, adjudged a bad plea, and against his former issue.

So in the cafe of Trefham verfus Ford, Cro. Eliz. 830. account, fuppofing him receiver of 120l. of his money, by the hands of Vavafor, to render account; the defendant pleaded, ne unques fon receivor, &c. and the jury find, that he was receiver

of

of fuch a fum. The defendant, before the auditors, pleaded that he was poffeffed of divers obligations, wherein Francis Trefham, fon and heir of the plaintiff, was obliged unto him in 400/. and that the faid Vavafor paid unto him this 120l. in fatisfaction of thofe bonds; and thereupon he delivered unto him. the faid bonds to the ufe of the plaintiff, which he accepted: and thereupon the plaintiff demurred, and it was held by the whole court to be no plea; for it is contrary to the verdict which found him to be receiver to render account: and the plea amounts to no more, but that he was not receiver to account.

Here the defendant Saunders pleaded in bar, not to his bailiff, but is found to be fo for the time mentioned in the declaration; and now would plead, that at a certain period, within that time, he delivered over with the plaintiff's affent. If fo, and this plea could avail him at all, then, after fuch delivery over, he was no longer his bailiff; which is contrary to the verdict, which has found he was bailiff for the whole time laid and mentioned in the declaration.

In Lutw. 58. the plea before auditors contradicted his own admiffion in point of quantity of wheat; here it contradicts the finding of the jury in point of time.

4. The defendant is concluded: for an iffue was tendered to the defendant, upon this very matter of confent, by the plaintiff in his replication; which was neglected to be taken by the defendant, and therefore he is now concluded, notwithstanding the proteftation taken in his rejoinder.

1. For that the proteftation is not against the plaintiff's averment in his replication, which averment is, that the management of the confignment was left by the defendant to Salomons, without the confent of the plaintiff; but the proteftation is, that the management of the confignment was fo left by the defendant to Salomons, in pursuance of the intent and meaning of the plaintiff, and of his faid confignment, and not by agreement between the defendant and Salomons.

Now this is just what I faid at firft, [namely] that by the very nature of the confignment, the plaintiff confents to either one or the other of them tranfacting the whole business; but doth not exempt either the one or the other of them from rendering an account thereof.

adly, But if the protestation did meet and extend against the plaintiff's allegation and averment, that the management of the

consignment

a proteíta

tion.

confignment was left by the defendant to Salomons, without the confent of the plaintiff; yet it would not avail the defendant to fave him from being concluded, by [his] not taking iffue upon that The effect of allegation or averment; for a proteftation only faves the party who takes it from being concluded by a matter alledged on the other fide, on which matter the party protefting could not take ifue: but fuch matters as are effectual, either in the defendant's bar, or in the plaintiff's replication, and which, if relied on, would put an end to the fuit, ought not to be taken by protestation. Plowd. 676. b. Finch 359, 360. And there the cafe was, an action of detinue by one as executor; the defendant, proteftando that the plaintiff was not conftituted executor, pleads in bar, that administration of the effects of the deceased was committed to another perfon, who fold the goods (for which the action was brought) to the defendant; et hoc paratus eft verificare: unde petit judicium fi querens actionem fuam prædictam verfus eum habere debeat, &c. here it was faid by Walshe Serjeant [and affented to by the court]" that the matter taken by the proteftation, viz. "the making of the plaintiff executor, might have been denied "by the plea, and an iffue joined upon it; for it is the ground of the fuit, and entirely destroys the plaintiff's action; and fuch "matter which is the effect of the fuit of the party cannot be taken by proteftation."

So in the prefent cafe, if the plaintiff's confent to the delivery by the defendant to Salòmens was material at all, the iffue tendered in the replication might have been taken by the defendant, and if found for him, would have destroyed the plaintiff's action but the defendant avoids taking iffue upon this, or any other part of the replication; and taking this by proteftation, (not verbatim, but feemingly) rejoins that upon the delivery over of the effects to Salomons, [without faying with or without plaintiff's confent] all his concern in the truft ceafed and was at an end. So that this pret-flation is against the very ground and Eft of the replication, which ought not to be, and cannot avail the party proteiting.

Another reason why the defendant cannot have any advantage from his proteftation, is, because the iffue is found against him; for then it avails not the party taking it, but only prevents a conclufion where the ice is found for him, unless it be a matter which cannot be pleaded, or on which iffue cannot be joined. Plowni, 276. b. C. Lit. 124. b. Finch 359. As an action by a villain against his lord, and the lord makes proteftation that he is his villain; and pleads the other matter in bar. And if they be at iifue, and the ifiue be found for the lord, then the villain