Page:Harvard Law Review Volume 2.djvu/270

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HARVARD LA W RBVIBW.

it had been extinguished by a release, or that it had been per- formed by an actual accounting with the plaintiff. This latter defence was set up by a plea of plene computavity as it was called, />., that the defendant had fully accounted with the plaintiff ; and to establish this defence the defendant must show that he and the plaintiff had agreed upon all the items of the account, and had struck a balance ; for an accounting must either be before a com- petent court, or by the act and agreement of the parties.

If the pleadings resulted in an issue of fact, it was tried by a jury, as in ordinary cases ; if in an issue of law, it was tried by the court. If the issue was decided in the defendant's favor, a final judgment in his favor was rendered ; if in the plaintiffs favor, an interlocutory judgment was rendered, namely, that the defendant do account, quod computet. Upon this judgment being rendered, the defendant, unless he gave bail, was committed to prison, and kept in prison until the account was taken, a final judgment rendered, and that judgment satisfied.^

The account was taken by auditors appointed by the court, who always consisted of two or more clerks of the court. The account commonly consisted of two classes of items, namely, items of charge and items of discharge. The former consisted of sums of money received by the defendant, and with which he was consequently chargeable. The latter consisted (besides charges for services) of sums of money paid out by the de- fendant on the plaintiff's account, and which were therefore to be allowed to the defendant, />., deducted from the amount with which he would otherwise be chargeable. The theory of these items of discharge was that they were paid by the de- fendant, not out of his own pocket, but out of the money in his hands belonging to the plaintiff ; and hence they did not constitute independent claims in favor of the defendant and against the plain- tiff, but were mere items in the account ; and the only way in which the defendant could enforce them or avail himself of them, was by procuring them to be allowed in his account. And this was so, even though, as sometimes happened, the defendant's payments exceeded his receipts, so that the balance was in the defendant's favor ; in which case the defendant was said to be in surplusage to the plaintiff. This would seem to show that a person subject to

1 Robsert v, Andrews, Cro. Eliz. 82; Pierce v, Clark, i Lutw. 58.