2d Plea, the mitations. plaintiff, and had the care and administration of the coral beads to be made profit of for him, and to render him account of the fame. Second plea-That there was not any open or current Statute of li- account between the plaintiff and defendant, and S. S. in the life-time of S. S. or between the plaintiff and the defendant T. S. fince the death of S. S. at any time within fix years next be fore the fuing forth of the original writ of the plaintiff. 3d Plea. Third plea-That before, and during part of the time in the declaration, viz. from the firft of June 1754, until the 14th January 1755, the defendant was governor of Fort Saint George; and that S. S. during all that time, and before and after, was a factor there, and a correfpondent of the plaintiff, well skilled in buying and felling coral beads, and in the knowledge and purchafing of diamonds; and that according to the ufage and cuftom of the trade of the East India Company, and by the rules and orders thereof, which ftill are in force, every perfon exporting coral beads from England to Fort Saint George, is obliged to make returns for the fame in diamonds, and to confign the coral beads to the governor of that Fort for the time being, and to any other perfon fuch exporter fhall think fit; that the plaintiff, before the ift of June 1754, viz. on the 1ft of January 1754, shipped the coral beads on board the fhips of the company, to be exported from England to Fort Saint George, and configned the fame to the governor thereof, and to S. S. to be by them received and difpofed of to the most advantage of the plaintiff, and to fend the account of the fales to him, and to make him returns in diamonds; which coral beads afterwards, viz. the first of September 1754, at the fort were received by S. S. and the defendant as governor, and were then and there delivered to the cuftody, care and management of S. S. by the defendant to be fold and difpofed of by S. S. for the most advantage of the plaintiff: and the defendant further fays, that the greater part of the coral beads, whilft he was governor, in October 1754, were fold by S. S. in the East Indies, and that the money arifing from the fales was paid to him, and by him wholly received to be invefted by him in diamonds for the plaintiff; and all the refidue of the coral beads afterwards, viz. on the 13th of January 1755, was alfo fold by S. S. to folid buyers, and three months credit given to them; and the defendant in fact fays, that he did not intermeddle with S. S. in the fales, but left the fame intirely to him, and that he the defendant never received any part of the monies or produce arifing from the fales; that he never received, nor was intitled to receive any part of the commiffion which S. S. was intitled to receive, according to the ufage of the trade; and the defendant fays, that while he was governor 3 governor, viz. on the 14th of January 1755, S. S. fent to the plaintiff a juft account of all the fales of the coral beads, and of the produce then arifen and to arife from fuch fales; and that the defendant on the fame 14th of January 1755 ceased to be governor of the Fort, and was fucceeded by George Pigott Efq. and then and there left in the hands of S. S. the whole money received by him, and all the fecurities for money to be received from the fales, to make returns to the plaintiff in diamonds; and that he the defendant on the fame day failed. from the Fort, and returned to England; and that while he was governor, he never intermeddled in the fales in any other manner than as an official temporary aflignee, or factor, or governor; and that he never afterwards at all interfered with the fales or produce of the faid goods, and that when he left the Fort, S. S. was in the first repute as a factor, both in fortune, skill, care and integrity; that the defendant on the 25th of June 1755 arrived in England, and on the 30th of June, and on divers other days, had interviews with plaintiff, and converfations about the premifes, at which, or at any time before the 1ft of September, and before the news arrived of the failure of S. S. the plaintiff never intimated a difapprobation of the conduct of the defendant, with refpect to the leaving the whole management of the confignment to S. S. or confidered the defendant as anfwerable for the returns thereof; and that the first news of the failure of S. S. arrived here after the faid interviews of the plaintiff and defendant, viz. the 9th of September 1755, and not before; and defendant never before heard of the failure of S, S. and this he is ready to verify, &c. The plaintiff replied to the first plea,That the defendant Replication and S. S. were bailiffs of the plaintiff, and had the care and to the first adminiftration of the coral beads, to be made profit of for him, plea.. and to render him account of the fame; and thereupon iffue was ift Iffue. joined. plea. The plaintiff replied to the fecond plea,That he, the Replication plaintiff, during the time in the declaration, and before, was and to the fecond fill is a merchant, and that the defendant and S. S. were his factors during that time, and had the care of the goods, to render an account, and that the account concerneth trade and merchandize which was never adjusted or fettled between the plaintiff and defendant and S. S. and this he is ready to verify, &c. as The plaintiff replied to the third plea (inter alia) That the confignment was made to, and accepted by the defendant and S. S. joint factors, and upon their joint credit; and avers, that the maVol. III. H Replication to the third plea, as to parcel of the nagement goods. The like replication as to the refidue. Rejoinder to Rejoinder to the replication to the third plea as to parcel. The like re nagement of the confignment was left and intrufted by the defendant to S. S. by agreement between them, as joint factors, without the direction, confent, privity or knowledge of the plaintiff; and this he is ready to verify, &c. There is the like replication to the third plea, as to the refidue of the goods in the declaration, The defendant rejoined to the replication to the fecond plea, -that the account doth not concern trade and merchandize; and thereupon the second issue is joined. The defendant rejoined to the replication to the third plea, as to parcel of the goods, protefting, (among other proteftations) That the management of the confignment was left by the defendant S. S. in purfuance of the intent and meaning of the plaintiff, and of the faid confignment, and according to the truft by the plaintiff repofed in S. S. and not by agreement between the defendant and S. S. for rejoinder fays, That upon delivery over of the goods to S. S. all concern whatfoever of the defendant, as to, of and in the care, trust and management of the faid goods, ceafed and was at an end. There is the like rejoinder to the replication to the third the refidue. plea, as to the refidue of the goods in the declaration. joinder as to Sur-rejoinder the goods. The plaintiff fur-rejoined to the rejoinder of the defendant as to parcel of to the replication to the third plea, as to parcel of the goods in the declaration, That upon delivery over of the goods to S. S. all concern of the defendant as to, of and in the care, trust and management of the faid goods, did not ceafe, nor was at an end, in manner and form as the defendant hath alledged; and thereupon iffue is joined. 3d Iffue. The like rejoinder as to the refidue of the goods. 4th Iffue. Verdi&. There is the like fur-rejoinder as to the refidue of the goods in the declaration, and the like iffue joined thereupon. Upon the trial of this caufe, the jury found for the plaintiff, upon all the four iffues; indeed the fecond iffue upon the ftatute of limitations, was given up by the defendant's counfel, and the two laft iffues are, in effect, one and the fame; so that it may be properly faid there were only two material iffues, and both found for the plaintiff. Upon the firft iffue, they found that the defendants, Saunders and Salomons, were the bailiffs of the plaintiff, and had the care and adminiftration of the goods and merchandizes of the plaintiff, in the declaration mentioned, to be merchandized and made profit of for him, and to render account when they should be thereto required. And upon the last issue they they found, that all concern of the defendant as to, of and in the care truft or management of the faid goods and merchandizes, or the produce thereof, or the returns thereof to be made in diamonds to the plaintiff, did not drop, ceafe, nor was at an end, as the defendant in pleadang hath alledged; i. e. when defendant ceafed to be governor of Fort Saint George, and pleads he then delivered over to Salomon all the goods, &c. Whereupon, in Michaelmas term, 9 Geo. 3. Judgment the court gave judgment, that the defendant Saunders account quod computer. with the plaintiff, of the time aforefaid, in which he and Salomons were the bailiffs of the plaintiff, and had the care and adminiftration of the faid goods and merchandizes, &c. to be merchandized and made profit for the plaintiff; and the defendant in mercy, because he hath not before accounted. In Hilary term, 9 Geo. 3. the three prothonotaries of the Auditors court were affigned auditors, to take and declare the account alligned. between the plaintiff and defendant, who not having affigned any day to take the account and one of the prothonotaries having refigned his office; In Eafter term, 9 Geo. 3. the then three prothonotaries of the court, William Mainwaring, Elq. Anthony Dickins, Efq. and John Floyer, Efq. were affigned auditors, to take and declare the account between the plaintiff and defendant, who affigned the ninth, tenth and twelfth of June, in Trinity term, in the 9th year of Geo. 3. at the Serjeant's Room, near this court in Westminster-hall, to take the account between the plaintiff and defendant. At which 12th day of June, the defendant Saunders comes before the auditors; and as to the goods and merchandizes whereof he is adjudged to render account to the plaintiff, for the time in which he the defendant and Salomons were bailiffs of the plaintiff, he, the defendant, prays an allowance of all the profit and produce of the faid goods and merchandizes, and fays, he ought to be discharged thereof; because he fays, that before, and during part of the time in which he, and Salomons, had been bailiffs of the plaintiff, the defendant was governor of Fort Saint George, and that Salomons during all that time was a merchant, factor, a correfpondent of the plaintiff, and well fkilled in the trade; and further fays, that according to the fage and cuftom of the trade, and the rules and orders of the Fast India Company, ftill in force and obferved by them, every perfon exporting coral beads to Fort Saint George, ought to make the returns in diamonds, and to confign the coral beads to the governor of the Fort, and to any cther perfon the exporter fhall tunk fit; and that plaintiff exported 2311 pounds, 10 ounces, Plea before auditors in Trinity term 9 Geo. 3. Mich. 10 Geo. 3. Demurrer to the plea before auditors. Hilary term, 10 Geo. 3. ift Argu ment. 13 pennyweights, and 18 grains of coral beads, and configned the fame to defendant and Salomons, which were received by them both, and that on the 15th of October 1754, they fold part thereof for 5385/. 45. and three farthings, and on the 13th January 1755, they fold the refidue for 4175l. 8s. 6d. farthing, and that Salomons fent an account thereof to the plaintiff, and that the defendant on the 14th January 1755, quitted the Eaft Indies, and all his concerns there, and returned to England, where he hath ever fince refided; and that when he left the East Indies, he, with the confent of the plaintiff, delivered over to Salomons, the whole money and produce then received and all the Jecurities for the further produce to be received, for the faid coral beads, to make returns thereof in diamonds to the plaintiff; and this the defendant is ready to verify; wherefore he prays allowance of all the profit and produce of the faid goods and merchandizes, and that he may be wholly difcharged thereof. The plaintiff imparls until Michaelmas term, 10 Geo. 3. and then demurs to the plea before the auditors, and the defendant joins in demurrer; which was argued twice at the bar, viz. in Hilary term, 10 Geo. 3. by Serjeant Jephson for the plaintiff, and Serjeant Leigh for the defendant; and in this prefent Eafter term, by Serjeant Burland for the plaintiff, and Serjeant Glynn for the defendant. Serjeant Jephfon for the plaintiff-The whole fubftance of this plea before the auditors is, that while the defendant Saunders was joint bailiff with Salomons, and when he quitted India, he, with the confent of the plaintiff, delivered over to Salomons all the effects, and therefore prays an allowance thereof before the auditors; this plea doth not materially differ from the third plea in bar to the action, wherein the defendant hath alledged, that when he ceafed to be governor of Fort Saint George, and quitted India, he left in the hands of Salomons the whole money and produce of the goods and merchandizes to be by him returned in diamonds to the plaintiff; the only difference is, that in this plea before the auditors, it is alledged that the effects were delivered over by the defendant to Salomons, and left in his hands with the confent of the plaintiff; which words are not material, for by making them joint bailiffs, the plaintiff gave fuch confent originally. I cannot find any fuch plea as this in the books, which is an argument that the like was never pleaded; indeed if the delivery of the effects over had been by the command of the plaintiff, to a ftranger, it would have been a good plea in discharge of the account before the auditors; but it is pleaded to be with the plaintiff's |