Privity of contract was required, and it did not lie by or against executors and adminis trators, 1 Wms. Saund. 216, n. ; Willes, 208, until statutes were passed for that purpose, the last being that of 3 & 4 Anne, c. 16. 1 Story, Eq. Jur. 4 445.
In several states of the United States, the action has received a liberal extension. 4 Watts & S. Penn. 550; 13 Vt. 517 ; 28 id. 338; 7 Penn. St. 175 ; 25 Conn. 137 ; 5 R. I. 402. Thus, it is said to be the proper remedy for one partner against another, 1 Dall. Penn. 340; 3 Binn. Penn. 317 ; 10 Serg. & R. Penn. 220 ; 15 id. 153 ; 2 Conn. 425 ; 4 Vt. 137 ; 3 Barb. N. Y. 419 ; 1 Cal. 448, for money used by one partner after the dissolution of the firm, 18 • Pick. Mass. 299; though equity seems to be properly resorted to where a separate tribu nal exists. 1 Hen. & M. Va. 9; 1 Johns. Ch. N. Y. 305. And see 1 Metc. Mass. 216 ; 1 Iowa 240.
5. In other states, reference may be made to an auditor by order of the court, in the common forms of actions founded on contract or tort, where there are complicated accounts or counter-demands. 12 Mass. 525 ; 6 Pick. Mass. 193 ; 8 Conn. 499 ; 13 N. H. 275 ; 1 Tex. 646. See AUDITOR. In the action of account, an interlocutory judgment of quod computet is first obtained, 2 Greenleaf, Ev. 44 36, 39 ; 11 Ired. No. C. 391 ; 12 Ill. 111, on which no damages are awarded except ration interpla• citations. Croke, Eliz. 83 ; 5 Binn. Penn. 564.
The account is then referred to an auditor, who now generally has authority to examine parties, 4 Fost. 198, though such was not the
case formerly, before whom issue of law and fact may be taken in regard to each item, which he must report to the court. 2 Yes. Ch. 388 ; Metc. Yelv. 202 ; 5 Binn. Penn. 433 ; 5 Vt. 543 ; 26 N. H. 139.
A final judgment quod recuperet is entered for the amount found by him to be due ; and the auditor's account will not be set aside ex cept upon a very manifest case of error. 5 Penn. St. 413; 1.La. Ann. 380. See AUDITORS.
6. If the defendant is found in surplusage, that is, is creditor of the pia' otiff on balancing the accounts, he cannot in this action recover judgment for the balance so due. He may bring an action of debt, or, by some authori ties, a sci. fac., against the plaintiff, whereon he may have judgment and execution against the plaintiff. See Palm. 512 ; 2 Bulst. 277-8 ; 1 Leon. 219 ; 3 Kebl. 362; 1 Rolle, Abr. 599, pl. 11; Brooke, Abr. Accord, 62; 1 Rolle, 87.
As the defendant could wage his law, 2 Wms. Saund. 65 a; Croke, Eliz. 479 ; and as the discovery, which is the main object sought, 5 Taunt. 431, can be more readily obtained and questions in dispute more readily settled in equity, resort is generally had to that juris diction in those states where a separate tri bunal exists, or under statutes to the courts of law. 18 Vt. 345 ; 13 N. H. 275 ; 8 Conn. 499 ; 1 Mete. Mass. 216.