case bishop against eagle in a action of account by the due against the old  churchwarden and judgement quod computent the defendant may plead before the  auditor that such a sum come to their hand by mistake that it be not due to  the parish and that they have repay it to the owner S c Mod churchwarden shall  be allow their expense for receive and pay parish money Prec Ch this be a  action of account bring by the present churchwarden against the former one the  defendant plead that the plaintiff be no churchwarden and on issue join a  verdict be give for the plaintiff and judgement quod computent the defendant  before the auditor plead that they receive such a sum of money as churchwarden  through a mistake when none be due to the parish that perceive the mistake  they repay the money to this plea the plaintiff demurrer it be say for the  plaintiff that no plea that will have be a good bar of the action can be plead  before auditor it be true they can not have plead ne unques receiver for they  do receive and for the use of the parish but they may have plead it special  and so show that they be not Accountable at the time of the bring the action  the counsel for the defendant allow that no plea which will have be a good one  to the action can be plead before the auditor but here as ne unques receiver  can be no plea since they do receive and receive for the use of the parish so  that have they be rob or not repay the money they must have remain Accountable  it be certain a fair defence and admit for true by the demurrer modern report  er p Powell justice be of opinion for the plaintiff for they may have plead  this matter special though they can not plead ne unques receiver general  Parker chief justice be of opinion with the defendant admit this to be a good  plea before auditor it will be necessary for the churchwarden to plead such a  modern report plea as show they to be honest man videlicet not only that it be  pay to they by mistake but repay whereas take it the other way and to be a  good plea in bar receipt by mistake will be no receipt at all and it will not  be necessary to show repayment but only that the money do not belong to the  parish this therefore incline he to support the plea as far as possible beside  have they pay this money to the parish before the knowledge of this mistake  the parish will have be charge with this money repayment be therefore a act do  in discharge of the parish and therefore a proper plea before auditor Parker  chief justice and Powell justice differ whether or not the churchwarden after  payment of the money to the parish videlicet the use for which they receive it  and this before knowledge of the mistake can have be charge in a indebitatus  assumpsit for the money the former think they may the latter that they can not  there be another point in this case videlicet whether the churchwarden shall  be allow their expense and surplusage in case their expense outbalanced c the  court be clear that they shall for churchwarden be more than bare receiver  they be in all respect bailiff the rule general take that a bailiff shall be  allow expense and surplusage in a action of account but not a receiver hold  true only of a bare receiver and as to he the reason be evident but where the  nature of the thing show that the receiver must be put to trouble and expense  the rule be false modern report trinity term the ten of queen whether in the  queen bench sir Thomas Parker Knt chief justice sir Littleton powys Knt sir  Robert Eyre Knt sir Thomas powys Knt justice sir Edward Northey Knt  attorneygeneral sir Robert Raymond Knt solicitor general