is a villain, as he was before; but if the iffue be found for the villain, then the villain is free; because that the lord took not at the beginning for his plea, that the villain was his villain, but took this by proteftation. The lord might have pleaded that he was his villain, and iffue might have been joined thereon. Lit. fect. 193. Co. Lit. 126. a. But where the matter cannot be pleaded, or iffue taken upon it, it fhall be faved by him protelling, though the iffue be found against him. As, if an infant bring an action against his guardian, and appear by attorney (which none but of full age fhould do) there if the guar dian takes the nonage by proteftation, it fhall fave him from all mischief, because he cannot plead it. Finch 359. So where one enters into warranty, and taketh by proteftation the value of the land, this fhall fave him from being concluded as to the value, although the plea be found against him. Co. Lit. 126. a. But if a man makes proteftation of a thing that is material, if the plea be found against him, he fhall be concluded of all that is material in the record.

Now in this cafe, not only the defendant himself infifts, that the matter of the confent is material, but certainly an iffue* Quere, might have been taken upon it; and therefore, the iffue he whether a tendered in his rejoinder being found againft him, his protefta- by the retion doth not fave him, but he is concluded from all advantage porter. of fuch confent now.

Another objection to this plea is, that it means to discharge the defendant, and yet is accompanied with a prayer of an allowance, which feems abfurd; for if there be any claim for an allowance, it must be made by the auditors upon taking the account; but if he is discharged from accounting, no allowance can be made.

Serjeant Glynn for the defendant.

1. It is objected, that this plea before the auditors is no plea, because the confent is nothing more than what the law will prefume; the plaintiff originally gave his confent by making the defendant and Salomons joint bailiffs; but this plea goes further, and infifts, that by exprefs confent of the plaintiff, the defendant Saunders was difcharged from accounting, the moment he delivered over the whole effects to Salomons, fo is intitled to an allowance before the auditors, the confent in the original contract or confignment to the joint factors, means, that they fhould tranfact the affair as they pleafed between themfelves; but this fubfequent confent, given by the plaintiff to the

defendant

material issue?

defendant Saunders, to deliver the effects over to Salomons, is in the nature of payment or accounting to the plaintiff.

2. It is objected, that if this is any plea it is a plea which ought to have been pleaded in bar to the action: but I fubmit it to the court, that it is not a plea in bar; the common pleas in bar are," I never was bail ff, a releafe, or plene computavit;" but this is neither of thofe pleas: it appears that Saunders the defendant, was once accountable, fo he could not plead in bar this matter; but he now accounts to the plaintiff, by delivery over of the effects, with his exprefs affent to Salomons, and the defendant has a legal right to have a judicial account fettled before the auditors; both the plaintiff and defendant are actors in account, and the defendant may have a balance due to him; it is therefore a proper plea before the auditors, because the defendant is, by law, to render an account.

3. It is objected, that this plea is contrary to the verdict of the jury; but I fubmit it to the court, that the time mentioned in the declaration is not material, it being laid under a videlicet; the matters in issue before the jury were to try, whether the defendant was or was not liable to account with the plaintiff, and it is determined that he was liable to account, and judgment has been given accordingly quod computet, and now he offers to account before the auditors, and prays an allowance for the money and effects he has delivered over to Salomons, by the exprefs order and confent of the plaintiff. I cannot find any determination in the books decifive, touching this matter; but the opinions on this fubject are many, and variant; there are many cafes, notes and hints, in the books which clafh with one another. If a factor is robbed, it is a discharge before auditors. Where one delivers a thing to another to acconnt for the fame and afterwards by the order and confent of the plaintiff, he delivers it over to another, it is pleadable in difcharge before the auditors; and fpecial bailee for a particular purpose may plead in bar, that he never was bailiff. The confent of the plaintiff given to the defendant, to deliver over the effects to Salomons, within the time mentioned in the declaration, is the great point, and we have, in this plea before the auditors, tendered an iffue thereupon; but the plaintiff hath demurred.

4. As to the proteftation, it is objected, that if an iffue had been taken upon the averment in the replication, it would have ended the matter; but I fubmit it to the court, it doth not contain matter fufficient to have ended the cause.

Burland

Burland Serjeant-My brother Glynn admits that the confent would be a nugatory iffue, if it went no further than the ori ginal contract or confignment. After fome days confideration, the judgment of the court was given, to the following effect.

Lord Chief Justice Wilmot

After having fully ftated the declaration and pleadings, the verdict and judgment quod computet; the affignment of auditors and the plea before them, to which the plaintiff hath now de marred, the chief juftice proceeded as followeth.

The general queftion is, whether this is a good plea in difcharge before auditors? from whence I fhall deduce three questions.

1. Whether abstracted from the proceedings, with respect to the laft iffue, and the verdict thereon; this plea before the auditors would be good after the verdict on the first issue?

2. Suppofe it would be good when fo abftractedly confidered, whether the facts now pleaded, have not been tried on the third plea in bar?

3. Whether they do not ftand admitted on this record?

It was faid by my brother Glynn, that there are many cafes, notes and hints in the books, which clash with, and contradict one another, which is certainly true; and the more we look into the books, the more difficult it feems to reconcile them; but out of this chaos fome material lights may be ftruck out, to guide us in this case; and although we cannot reconcile them all, yet we will draw fome rules out of the whole, which I will mention.

1. The firft rule is, that whatever matter can be pleaded in bar to the action, must be fo pleaded; and that whatever matter which may be pleaded in bar, cannot afterwards be pleaded before the auditors, the reafon is plain, given in Styl. 411. and in a MS. note of Rolle, which I have, it must be fo pleaded, to avoid trouble and charge to the parties.

2. Rule. Except in case of a release, or plene computavit; if the party is once chargeable and accountable, he cannot plead in bar, but muft plead before auditors; these exceptions are because a release, and having fully accounted, are total extinctions of the right of action; which the court is to judge Vol. III.

I

of,

Judgment of

the court.

41 Ed. 3. 3.

of, and even in those two cafes, they must be pleaded fpecially, and cannot be given in eviednce on ne unques receivor. Brownl.

24, 25.

3d Rule. Nothing can be pleaded before auditors, contrary to what has been pleaded before, and which has been found by verdict; because it would introduce either contrary verdicts, or two verdicts of the fame, which is abfurd. All the cafes where the pleas have been rejected before auditors, were, because they might have been pleaded in bar; you fhall not lie by and plead before auditors what you might have, before, pleaded in bar.

If a defendant has paid over as a trustee, he has executed a truft, and then it is a bar to the action, he never was accountable.

This being fo, if the fact in this cafe had been relevant and material, (which we think it is not) it would have been a good plea in bar; because it could not be given in evidence on the general iffue of ne unques bailiff, for it would contradict that iffue, and be inconfiftent with it.

We are of opinion the plea is bad, and that the reasons given by my brothers Jephfon and Burland have received no answer.

The plea is, that the defendant delivered over the effects to Salomons with the confent of the plaintiff; the confent is nothing, unless the plaintiff had difcharged him of the account; if the plaintiff had confented and agreed that the defendant fhould be no longer chargeable, it would have been material; but the confent is nothing more than is implied in the confignment; for every confignment to two factors jointly, imports a confent by the confignor for them to truft one another, but both are anfwerable and accountable for the whole; they have a right, by the contract, to deliver over to one another. Joint factors are co-obligors, and are answerable for one another, for the whole; and if none were answerable but the factor who imbezzled the effects, it would be just the fame as if that one was only intrufted: perhaps the confignor has a better fecurity by configning his goods to joint factors, which fecurity ought not to be leffened or impaired without the most clear intention of the confignor; it is to guard against the chance of a fingle perfon being factor, therefore the confent is nothing more than the confignment implies, and the whole record admits; they acted as they thought proper themselves; and it would be very abfurd to infer that one

of

of them was difcharged from the truft, by their acting together in the common mode of joint factors, and according to the nature of the tranfa&tion which creates the truft.

My brother Leigh, to fhew that the confent was material, cited Kirk verfus Lucas, Sty. 430. where it is faid by Rolle Chief Juftice, that payment by confent is a good plea before auditors; that is only a dictum, and the judgment was, that it was not a good plea; and when the cafe is confidered, it has nothing to do with confent, or the dictum: the defendant received money of the plaintiff to deliver over, and accordingly he had delivered it over; but pleaded ne unques receptor, and there was a verdict for the plaintiff, and judgment quod computet against the defendant; whereupon auditors being affigned, he pleads before them, in difcharge of the account, that he received the money of the plaintiff to deliver over, and that accordingly he had delivered it over; and the queftion was, whether this plea before the auditors was a good plea in difcharge of the account? and it was overrulled, and held ill, becaufe it was a plea proper to have been pleaded in bar; fo the dictum doth not apply to that cafe; but in the cafe at bar, there could be no confent by the plaintiff Godfrey after the original confignment, the time would not admit of it; but we lay this fact out of the cafe.

2. We will confider the proceedings on the third plea, taking it to be a good plea in bar, that the plaintiff confented for the defendant to deliver over the effects to Salomons; and be this ever fo material, can it be pleaded after the verdict, or as it stands on this record? If we fhould allow this plea, we should admit a matter to be pleaded again, which hath already been litigated and tried, and which would contradict the verdict of the jury, and what appears on record.

The merits of the queftion have been tried upon the defendant's plea, which is, that the governor of Fort Saint George must be confignee; he fays, when I was governor there, this truft attached in me as governor; fo when I cease to be gover nor, there was an end of this truft, and I was no longer accountable: thefe are the defendant's merits. What favs the plaintiff to this?-He replies, that the management of the confignment was left and intrufted by the defendant Saunders to Salomons, without the direction, confent, privity or knowledge of the plaintiff.-Then the defendant rejoins, that upon his leaving the East Indies, and ceafing to be governor of the Fort, all his concern in the truft or management of the goods, &c. ceafed and was at an end.-The plaintiff fur-rejoins, and takes iffue upon that fact, which is found against the defendant.-If

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the