In this case the court quash the report made by the .auditors.

The cause was continued by consent of the parties, under a rule upon the plaintiff to reply to the defendant’s pleas.

At the next term, (October, 1797) the plaintiff replied to the defendant’s pleas, similar to the replication in 2 Harr. Ent. 407, stating, that “there was due and owing from sundry inhabitants of the said several hundreds, oii several executions againstthem,thesum of 123Í. 11s. 3d. current money, and also the further sum of 39Z. 8s. 7d. current money, for fees arising due on executions; and also the further sum of 61,341 pounds of tobacco, for officers and lawyers lees,” &c.

The defendant rejoined to the first replication, that there was not due and owing, &c. the said several sums of, &c. And to the second replication that he the said Collins was not authorized, &c. to demand, &c. nor did he demand, &c. the aforesaid several sums of, &c. Issues joined.

BIKES 03? EXCEPTIONS.

1. The plaintiff at the trial, to support the issues joined, produced a witness, and offered to prove by him, that the defendant admitted to him that there were due and owing from the inhabitants of the several hundreds in the pleadings mentioned, the sum of 123Z. 11s. 3d. current money, upon sundry executions delivered to him the defendant as deputy sheriff; and also the sum of 39Í. 8s.7d. current money, for sheriff’s poundage fees upon executions; and that the said several sums the defendant admitted he had received.

The defendant by his counsel, objected to the admission of this evidence, unless the judgments or executions themselves, upon which the said money was alleged to be due, or a copy of them, under the seal of office in which the same were obtained, or from whence the'same issued, were produced.

Chase, J. (b) The court are of opinion in this case, that the plaintiff may offer evidence of the admission of the defendant that he had received the sum of 162Í. 19s. 9d. on executions put into his hands as deputy sheriff, without producing the executions.

The objection was therefore overruled, and the witness was permitted to give evidence of the defendant’s admissions to the jury, without producing either the said judgments or executions, or copies of them, upon which the said sums of money were alleged to be due.

The defendant excepted, &c.

2. The plaintiff offered evidence to prove, that he, the plaintiff, in the years 1790 and 1791, in due time put into the hands of the defendant, to be collected, 178,666 pounds of tobacco, due for officers and attorneys fees, from persons residing in the hundreds, in the condition of the bond mentioned, which the said defendant received to collect.

The defendant objected to the admissibility of this evidence as not sufficient to support the issues in this cause joined.

Chase, ,T. The court are of opinion, that the sheriff is responsible for the amount of officers and lawyers fees put into his hands for collection, within the time limited by law, unless he makes his return to the officers and lawyers of insolvents, &c. within the time prescribed by law; and that the deputy sheriff (the defendant in this case) is liable to the amount received by him for collection in the hundreds specified in the pleadings, unless he made a return to his principal, of insolvents, &c. in due time for him to make a return to the officers and lawyers, or otherwise legally discharged himself.

The court are therefore of opinion, that the evidence is sufficient to support the issues in this cause joined upon the part of the plaintiff, unless the defendant care show that he has made a return in due time to the plaintiff of insolvent fees, or otherwise legally discharged himself from the payment of the same. The defendant excepted. Verdicts for the plaintiff upon both issues, and judgment thereon. See 2 Harris’s Entries, 194.

The defendant appealed to the court of appeals. The appeal was argued in that court by Mason and Shaaff, for the appellant, and by ICey for the appellee.

Thefirst objection is, that by the act of assembly of 1785, ch. 80, s 12, on the appointment of auditors there shall be the same proceedings as in actions of account.

In this case on quashing the audit, the court proceeded to try the cause,, and gave judgment on the verdict of the jury.

I contend, that the cause being once by a judgment of the court before auditors, the judgment must be for the arrears they award, or ore default for the whole value; and that on quashing the report the court could not take up the cause and try it again.

In an action of account there are two judgments; the. first quod computet, which is only interlocutory — the last final for the arrears, &c. 1 Shep. M, 11, 1-4. 11 Co. 38 a. 1 Brorwnl. 25.

The auditors must appoint a day, and may adjourn de die in diem; and if the defendant does not attend, they may issue capias ad computandwm. 1 Com. Dig. §3. 1 Vin. 171. 1 Mod. Ent. 66.

The defendant may plead before auditors, if any fact is denied; and on demurrer or issue, the case comes to the court to be tried,* but he can plead nothing before auditors which might have been pleaded to the action.— 1 Bac. M. 21. 1 Com. Dig. 93. ' 3 JVils. 73. 1 Mod. Ent. 42, 52, 43, 55, 66.

The nature of the proceeding shews, that the proceeding should he before the auditors, and any subsequent judgment founded on their proceedings, because the first judgment quod computet is an interlocutory judgment; and having determined .that the parties should account, it is in contradiction to that judgment to try the cause in court on the pleas put in, in court, or on any other pleas than those before the auditors.

On quashing this report the court ought not to have proceeded to try the cause on the pleas to the action; but ought to let the party proceed before the auditors on the appointment of the court. The judgment of the court that auditors be appointed was still in force.

The proceedings before the auditors may be erroneous, and judgment on their report wrong, and yet the judgment quod computet regular, and the person entitled to proceed by capias ad computandum. Cro. Elies. 19, 806. 1 Tin. 174. 1 Mod. Ent. 170.

The proceeding is not in the nature of awards, but on a different ground. The court in this case admitted the necessity of proceeding according to the action of account. They quashed the proceeding of the auditors, because they gave no day to the party, &c. The cause is continued until final judgment. 11 Co. 38 a.

Second objection. The cause is discontinued by the continuance law.

It is certain this cause has been on the docket longer than is allowed by the act for continuing actions.

The question is, does the judgment appointing auditors, being an interlocutory judgment, take it out of the continuance law?'

It must either be such a judgment as will let in the effect of the first objection, or will come under the continuance law.

Taking the case as regularly in court,

Titied objection. The replications do not state the different persons from whom the money was due on execution. See 2 Burr. 773. Lucas 227. The reason assigned is, that many breaches cannot be assigned,* but since the act of 1785, ch. 80, s. 13, on the plea oí performance thercal damages is to he found; and how is that to be done except all breaches are set out?

Fguntm objection, on the first bill of exceptions. The record ought to be produced, being the best evidence.— The best evidence is always required. Gilb. L, E. 15, 16,17.

Here are two things necessary to be proved, first, there was money due- on executions; and secondly, that the executions came to his hands, and that he received tin*, money.

The first is a matter of record, and must be proved by the rowl alone. The second is a matter of fact, and to be proved as other facts.

The defendant’s admission of having received executions, &c„ is no evidence of that; the record alone must, be resorted to.

If one produce a lease made upon an outlawry lie must produce the record of outlawry. 12 Vin. 61. One cannot give, an account of the substance of a letter, but must produce the letter. 12 Vin. 62. If the record is the b.-st evidence, the acknowledgment of the defendant will in ■ ni jópense with the necessity of producing it. 13 Vin. 176. Lord Jtfay. 733. The subscribing witness to a foosu! innst be present, and the acknowledgment of it will not fee admitted to be proved. 1 Esj). 89, 300.— Bang. 205, 216.

Chi a sole by a sheriff of a term under.fi. fa. it is not ir.v esa -y to produce a copy of the judgment. 12 Tin. 251. Taylor"s Eep. JV*. G. 107.

Fifth objection, on the second billof exceptions. The form of the bill of exceptions is, that the evidence Is Püfjlcknt to support the issue. This is improper on three grounds.

1st Because the jury, and not the court, are the judges of the weight of evidence; and whether sufficient to support the issues, was for the jury alone to say.

2d. Because there are two issues — one that there was not the money and tobacco due on executions, execution fees, and officers fees. The other that tire defendant had no authority to receive them, &c.

This surely can be no evidence as to the executions.

3d. That the sheriff must, before he, can make his deputy answerable, prove more than a delivery. He must ps’ove debtors solvent; that the fees were collectable, properly made out, &c.

The case between the sheriff and his deputy is the common case Of a principal and deputy, in which the latter is ant answerable, except on default, &c. By the express comistión of this bond he is only to account for what ho might collect, &c.