Bainton and cheek mich banc sup Trin rot plea to a action of account Bainton  bring a action of account against cheek as his receiver the case in sum be  this Bainton deposit two hundred pound lie upon a horserace in the hand of  cheek to be deliver to the party that shall win accord to article make betwixt  the party Bainton suppose he have win the money demand it of cheek who have  deliver over the money to another who he suppose have win the wager and r the  money be not deliver to Bainton ba ynton bring this action again t CEeek cheek  the defendant as to one hundred pound plead ne unques receptor upon which plea  he be adjudge to account before auditor and before the auditor he plead in  discharge of the account that he have deliver over the money to another that  win the wager the plaintiff reply that there be foul play use by the other  party in strike one of the horse that run the race upon the nose which be foul  play and against the article make betwixt they and so he style report er p  ought not to have deliver the money the question be whether this be a good  plea in discharge of the account before the auditor roll chief justice say the  plea be not good in regard that the defendant be adjudge to account which do  imply that the money be fair win by the plaintiff latch on the other side urge  that the replication be not good but be impertinent and therefore that the  plaintiff can have no judgement though the plea in bar be not good but that  there ought to be a repleader at another day green move for judgement for the  plaintiff and cite hob tasker case that a issue join upon impertinent matter  be not help by the statute and ken and hall case in hob Rep but here be only a  informal issue which be help by the verdict as be rawden Tuts case and napper  and Dawkes case in hob report and mich car Giggon and purchase case and say  that at the commonlaw a trial upon a double issue be good break issue that  this plea of the defendant ought to have be plead in bar of the action and not  in discharge before the auditor Edward brook account and dyer hungerfords case  latch on the other side say that the replication be imperfect and that the  verdict help it not the defendant allege the article make upon the wager and  the replication be about strike of the horse and answer not the mater plead in  bar for the act of the rider videlicet the strike of the horse be not the act  of bish who make the article and beside here be no breach of article for they  do not prohibit to strike the horse or to ride foul accord to the law of a  horserace and the rider do not appear to be bish his servant but a three  person and a action of the case lie against he and not against bish who for  ought appear have do nothing against the article and the matter in bar of the  account be well plead and can not be otherwise as the case be and it be well  enough though it be not plead in bar of the action for he can not have plead  ne unques receptor pur account render e dyer h as be can not have plead the  general issue and give the special matter in evidence and he can plead thus in  bar of the action of account and there be not one book that say otherwise e h  h h e h e e h which book do show it may be as well plead before the auditor as  before in bar of the action e Fitzherbert account e by these book he be compel  to plead these matter before auditor and the other book be not express against  it and in this case here be not a bailment pure to deliver over but there be  subsequent matter which direct how it shall be deliver over and this matter he  must plead but admit the bar to bail if the replication be impertinent and  that he have confess that he have no cause of action then it be with we and  here be no pertinent matter plead to avoid the matter confess and so the  judgement ought to be against the plaintiff report Ridgeways case be that if  impertinent matter be in a replication which answer not the bar judgement  ought to be give against the plaintiff and the matter confess be not in bar of  the action of account as be object h h hale the matter of delivery make not  the matter the subsequent style report matter be ground upon the condition  make upon the delivery dyer and here be a insufficient bar and the matter of  the replication be good accord to the matter allege in the bar for the article  ought to be interpret accord to the intention of the party which be that the  race shall be fair win which be not so here e matter of covenant by deed may  be discharge by subsequent matter of fact and the rider here shall not be  account mere stranger for they be instrument make by the party and there be  confidence put in they to perform the act of ride and their act shall be the  act of the party and here be nothing show in the replication which destroy the  action roll chief justice if you have confess the article and allege  impertinent matter in the replication how can you take advantage of a ill bar  and how can you interpret the intent of the article otherwise than be express  by they and how can we take notice here that there be not fair play in the run  of the race and I doubt of the book cite by latch for where matter may be  plead in bar the party shall not be compel to come before auditor for that be  unreasonable if deliver good to deliver over and the party do it not he be  Accountable to I but if be deliver they over he be not for he may plead this  in bar of the action and so be it in the case at the bar and you may have give  the special matter in evidence style report er p here by the meal Act and this  plea here before the auditor be clear void the main doubt here be whether  there be apparent matter to the court to hinder the plaintiff from his  judgement I conceive the article shall be interpret fair and that there ought  not to be fowl play accord to common intendment and it be material to show  there be fowl play in the replication and so the issue be well join and  judgement ought to be for the plaintiff jerman and Nicholas justice to the  same purpose as roll