#### Thomas Willson *against*Joseph Willson.

IN ERROR.

Plea of genlinquisbedj6" and judgment our^errorm wafranfoi at tomey, &c/

Party cannot prosecute by two or Mys^par'tnership. (a)

take account, atld Oferte sues to court.

The account returned may be entered on ferreiftoonTy

FROM the return of the writ of error, the following case appears. *Joseph Willson,*the plaintiff below, brought hjg action of account render in “ *Gloucester*Inferior Court of Common Pleas,” by writ, returnable to *March*1816.

The P^hRiffj by *White*and *Armstrong,*his attorneys, counted ; that whereas *Thomas Willson,*from the first day f *^*1802, until the 1st of *December*1811, was owner of *J }*one moiety, and bailiff of the said *Joseph,*of the other moiety, of a certain sloop or vessel called, the *Two Brothers,*with her tackle, apparel, and furniture, and during that time had the management, freighting, and ^e^ng to hire, of said vessel, and receiving of all moneys made or earned by her, by freight or otherwise, for the advantage *and profit of the said *Joseph*and *Thomas ;*to ° *f 1*render a reasonable account thereof, when he should be thereunto afterwards requested, yet he has refused to account, &c.

The defendant pleaded, that he never was the bailiff in manner and form, &c.

*June*term 1817. Defendant relinquished his plea, and judgment was given, to account for the time aforesaid, of the moneys earned and made by the said *Thomas,*and received as bailiff as aforesaid. And, by consent, *David S. Basset, Edmund Brewer,*and *Aaron Burrough,*assigned as auditors, to take and declare the account: and the said court, by consent, assign the said auditors to meet at, &c. on, &c. to take the account aforesaid.

At *March*term 1818, the following report was made. “We *Edmund Brewer, Aaron Borough,*and *David 8. Basset,*auditors, appointed at the Inferior Court of Common Pleas, in and for the county of *Gloucester,*of the term of *June*1817, to audit and state, in account at issue, before the said court, between *Joseph Willson,*the plaintiff, and *Thomas Willson,*the defendant, and having been duly *913sworn and affirmed, agreeably to law, before *James Mat-lack,*esq., one of the judges of said court, did proceed to hear and investigate the said matter in controversy, between the said parties, and after divers proofs and evidences had before us, in presence of the parties, do agree to audit and report the following, (stating an account, &c.); which balance of eleven hundred and fifty-four dollars and forty-six cents, we find due from *Thomas Willson*to *Joseph Willson,*together with all legal taxed costs ; and further, do order each party, to pay their equal one-half of the expenses of the auditors. All which is submitted. In testimony, whereof, we have hereunto set our hands and seals, this 24th day of *February,*in the year of our *Lord*1818.” Signed, &c.

At the same term, the following entry was made in the minutes of the court.

*“Joseph Willson*v. *Thomas Willson.*In account. The auditors, *David S. Basset, Edmund Brewer,*and *Aaron Bur-rough,*heretofore appointed by this court, by and with the consent of the said *Joseph Willson*and *Thomas Will-son,*to state the account of the said *Thomas Willson,*of the time, &c. in which, &c. having reported to this court the said account, by which it appears there is due, to the said *Joseph. Willson,*the sum of $1154.56 ; ordered *on motion of *White*and *Armstrong,*attorneys of plaintiff, that the same bo filed; and, on like motion, ordered, that judgment thereon be entered for the said *Joseph Willson,*against the said *Thomas Willson.*Therefore it is considered, that the said *Joseph Willson do*recover, against the said *Thomas Willson,*the aforesaid sum of $1154.56, by the auditors, aforesaid, reported to be due and owing to the said *Joseph,*from the said *Thomas,*and also $133.13, for his damages, as well by reason of the interpleading aforesaid, as for his costs and charges, by the said *Joseph,*in and about his suit in this behalf expended, to the said *Joseph,*by the court here adjudged, with his assent. And the said *Thomas,*in mercy,” &c.

Thirty-one errors were assigned, by *Pearson,*attorney of plaintiff. Those which were relied upon, for reversing the judgment, will appear by the remarks of the counsel.

When the argument was called, the Chief Justice *914objected, that no judgment of the court below had been and it appeared, that no record had been made Up, for the return to the writ was a mere copy of the entries in the minutes.

*R. Stockton.*

It is certified to be a true copy from the record.

The court permitted the argument to proceed, directing that the record should be perfected before judgment.

*Goxe*and *R. Stockton,*argued for plaintiff in error. *Armstrong,*for defendant.

For the plaintiff, it was argued.

1. The action was not prosecuted by plaintiff, or any attorney of the court. *Pat.*355. The names, *White*and *Armstrong,*are signed to the writ and declaration. The warrant of attorney is to *John Moore White*and *Robert L. Armstrong.*There is no such attorney as *White*and *Armstrong.*Attorneys are officers of the court, and responsible for their conduct, and the management of the cause, to the court and party. Of such persons there can be no partnership ; a partnership cannot be criminally responsible and punished for misconduct.

2. The declaration is defective. 1. It sets forth no right of the plaintiff, in the vessel, except by inference, which will not do in pleading. 1 *Mod. Ent.*42-7. 1 *Mod. Rep.*65. 2. It charges defendant both as bailiff and receiver, yet their liabilities are manifestly different. 1 *Mod. Ent.*65. 3. It does not charge that he had received more . than his share of the moneys made and *earned by the vessel. *Wittes*208. 1 *Wentw.*83. At common law, there was no action between joint tenants and tenants in common. Our statute *(Pat.*142, sec. 3) gives the action. Here the declaration does not follow the statute. The defendant is not brought within it. It is a mere action at common law.

3. The declarations and proceedings do not appear to be in any court of the state. *New-Jersey,*appears no where in the record. The title given to the court is, “ *Gloucester*Inferior Court of Common Pleas,” which is not the statutory title.

4. The conduct of the auditors, and the report made, are illegal. They are not arbitrators, nor can they act as *915such. They are mere ministerial officers, and determine no disputed questions, but refer all to the court and jury. 2. *Wils. sect.*284-5. *Mod. Ent.*44-5. Now, 1. They did act as arbitrators, took oath, heard evidence, and gave the result of their deliberations ; thus rendering the action a compulsory arbitration. 2. It does not appear that they met and heard at the time appointed by the court. 3. The declaration calls for an account from 1802 to 1811. The account rendered, is from 1800 to 1810. 3 *Wils.*73, 101. 4. The defendant is charged with half the price of the vessel, and thus compelled to become an involuntary purchaser. 5. They added interest, even beyond the date of the report. Now, interest is damages, and joint tenants and tenants in common, are not bound to pay more than is actually received. 6. What is called the report, is not so ; it is mere agreement to report. 7. They ordered defendant to pay costs; this could not be at this stage of the cause. *Pat.*140, *sec.*5. 8. It does not appear that the evidence was given on oath; whereas the statute gives the power to administer an oath. 9. The judgment, exceeds the report, by a small sum. This is fatal. 10. The account is not entered upon the record, and therefore, this is a judgment, without any thing to support it.

5. The court refused to hear exceptions to the report.

*Armstrong,*in answer.

1. The declaration does, in the words of the forms, and with sufficient precision, state the ownership of the plaintiff, and the character of bailiff and receiver in the defendant. *Amer. Prec.*135. But if not so, the defendant pleaded the general issue, which he withdrew, and confessed that he was bailiff; and hence followed the judgment, *quod computet.**1 *Bac.*36. The confession of judgment, cures the errors of form in the declaration and warrant of attorney, if any exist, which is denied.

2. The auditors, could act in no other way, under our statute. They were obliged to take and state the account: and it was their duty to receive the exceptions and issues, if any were made, and return them to the court. But none were made. 4 *Yeates*358. 3 *Woodes.*84. The error, if any, in going back to 1800, was at the request, and to *916the advantage of the defendant. The account shews, that he had large claims beyond that date, which very much reduced the account of plaintiff.

3. In judgments in account, it is the proper mode to refer to .the account rendered, as the foundation of the judgment, and this is sufficient to sustain it. But if this be incorrect, it is not therefore, necessary to reverse the whole proceedings. There are two judgments : the latter may be reversed ; the former, maintained. *Bac. Error.*

4. As to the refusal of the court, to hear exceptions to the report, it is sufficient to say, that this is a writ of error, and no such fact, in any way, appears upon the record.

(a)

 Revised Statutes. Practice of Law, Attorneys, §1.

Kirkpatrick C. J.

This is a writ of error to *Gloucester*Pleas, in an action of account. This form of action, is, in itself, very difficult, dilatory, and expensive; it has long since fallen into disuse, in a great measure, in *England ;*and in *New-Jersey,*I have never known or heard of, more than two or three cases, either in my own time or before; and I doubt whether even they were carried through to final judgment. Hence, *we*have but few precedents to guide us in a suit of this kind, and these few of pretty ancient date; not very intelligible, and still less applicable, at this day. In most instances, therefore, the action on the case, which is simple, easy, and well understood, has taken the place of this, in the common law courts, and when that did not afford a complete remedy, resort has been had to Equity, where confidential concerns and trusts of this kind, are more properly cognizable. Still, however, like all other actions, it is open to all; and in some cases, where the expense of a court of chancery, would be too heavy for the subject matter, as it must be confessed, *under its present establishment,*it frequently would be, it may, also, be necessary.

*The record is before us, and it is our duty to look into it. There are a great number of errors assigned ; so many that it would be exceedingly tedious, as well as wholly ' useless, to discuss them individually; we may, therefore, rather make a classification of them, and say, that some of them relate to matters of mere form; many of them, *917to the conduct of the auditors, and their allowances and disallowances, in taking the account; and one or two of-them, to the record itself.

Those which concern mere matters of form, as the warrant of attorney, the venue, the continuances, &c., in all cases, after judgment, are aided by the act concerning amendments and jeofails, and on writs of error can never prevail. It is, therefore, unnecessary to speak of any of these, unless it be to say, that the plaintiffs prosecuting by *White*and *Armstrong,*his attorney, is not regular, under our statute. That declares, no man shall prosecute his suit, except by himself, or by *a licensed attorney at law.*Now, two joining themselves together in this way, though they both be licensed attorneys, cannot bring themselves within this description, and make *one licensed attorney at law.*The attorneys are considered as confidential officers of the court; they receive fees, and are liable to penalties as such; and may be disbarred for malpractice, *(a)***Can two, then, so conjoin themselves together, as to receive the privileges of one, and be subject to the penalties of one ? If there be malpractice in the conducting of a cause, shall they both be disbarred ? and if not, which of them ? Our statute does not contemplate such partnerships in official duties, and therefore, they cannot lawfully exist. But, though this be irregular, and might have been taken advantage of at the proper stage of the suit, yet, after judgment, it is certainly too late.

Then, as to the conduct of the auditors, and their allowances and disallowances, in taking the account.

The plaintiff counts, that the defendant, from the 1st *May,*1802, until the 1st *Decern,her,*1811, was proprietor of one-half, and bailiff, of the said plaintiff of the other half, of a certain sloop called *The Two Brothers,*and had the management, care, freighting, and letting to hire thereof, and the receiving of the moneys made and earned thereby, and was to render a reasonable account, &c.

The defendant first pleads, that he was not bailiff, but *918after*wards retracts his plea, and submits to account, thereby acknowledging his liability, and every other material fact charged in the count. After this, he can only acquit himself by shewing the amount of the money actually received, and the necessary expenses and moneys paid out of the same, and by delivering over to the plaintiff, his moiety of the balance.

The only plausible objections, to the proceedings of the auditors, are, that they took into the account, the moneys advanced by the parties, for the building of the sloop, before the defendant became bailiff, as aforesaid; and also, that they took into the said account, the amount of sales of the said sloop, when sold by the defendant, which selling was not an act -within his bailliage; and that, therefore, they exceeded their power and authority; the account of the defendant, as bailiff, only, being submitted to them, to be taken and heard. But even these objections, cannot be supported.

The defendant had advanced, more than his half part of the money, for building tlie-sloop, by nearly §400; and, for this sum, according to the usage in such cases, he had a lien upon the sloop, and her earnings and profits, in his hands, until it was satisfied and paid, out of the said earnings and profits: and having been so satisfied, he exhibited it as an item of credit to discharge himself, *pro tanto,*in his account now rendered. It was a proper charge against the earnings of the sloop. It became necessary for the auditors, therefore, to look into this whole transaction about the building, and to settle that account, in order to fix the amount of this item, with intelligence and precision. And their having done so, the defendant, now, assigns for error, although he himself, compelled them to go into it, for his own benefit. Butin this, he certainly cannot prevail. The subject was beyond their powers, in appearance only, but not in reality : so too, as to the selling of the sloop. She was declared to be no longer sea-worthy: was not the selling of her, and making the best of her, a part of his duty ? was it not that very management charged in the count, to be committed, and necessarily from the nature of the thing, actually committed, to the bailiff? and being too, within *919the time, during which he is charged as bailiff, shall he not account ? Surely. These, being proper matters then, - for the auditors to hear, these objections are done away. And as to the particular items allowed or disallowed, the *party, if he were dissatisfied, might have tendered issues, either in law or in fact, and having neglected to do so, he could not have come, even into the court below, in a summary way, to object to such items, and much less can ho come in here now, upon this writ of error.

The auditors have stated the account; they have delivered it into the court; there have been no denials made, nor issues taken upon it; the balance is declared, and judgment entered; there can, therefore now, be no errors assigned, but such as are apparent, upon the face of the record itself.

And the only one assigned, of any moment, which is so apparent, is, that the account itself taken by the auditors, exhibiting all the items thereof, and the balance due, must necessarily be entered upon the record, in order to support the judgment; that this is not done here, and that therefore, it is a judgment without premises to support it.

In looking into the old entries, on this subject, we find some diversity in this respect. Some of the rolls do contain the account returned by the auditors, *in hasc verba,*with the issues taken, if any, and the trials and verdicts thereupon ; and then they close with the second judgment ; that the plaintiff, recover the balance necessarily resulting from those verdicts. Others do not contain the account returned by the auditors, but refer to it only. After stating the previous proceedings, they say, *Et iidem auditores delibe/rant hie in curiam, computum inde coram eis factum,*t£Ui juno rotulo est constjtus, (sometimes, qui huic rotulo est annex us,) *etinde,*the parties, *petunt breve*Ac. *de Vm. Fa.*Ac.,to try the issues taken; and then they go on with the trial, verdict, balance, last judgment, &c.: and certainly, in point of convenience, this last mode, which has been followed in this case, is far preferable, especially in modern times, when accounts are frequently too voluminous, to be carried into a record.

*920Upon the whole, therefore, it is the opinion of the whole that the judgment must be affirmed.

Southard J.

remarked. That he did not perceive any error in the manner of prosecuting, by the attorneys; that the statute did not absolutely require, that the party should appear by one only; that the warrant filed, was correctly drawn; that the man*ner of endorsing the names on the declaration and writ, was sufficient to answer the purposes of the statute; and that if one of the attorneys of the court, should be guilty of misconduct in his office, there would he no difficulty to the. court in punishing him, because he was in partnership with another: and if the client was injured by the firm, he too, could have his remedy.

Judgment affirmed.

(a)

*Anonymous, 2 Sal. 162. In re Attorney’s License, 1 Zab. 345.*