INTRODUCTION ci

In a number of cases the court assigned auditors to audit and adjust accounts
between the parties and then to make report thereon to the court, usually at the
next term. The basis of this power was a resolution of the House of Delegates, dated
May 29, 1697, assented to by the Governor and the Council, reading as follows:

"Resolved that the severall Courts of Law, where the suits are hanging, Appoynt
Auditors and have power to fine them upon Contempt and that when the bill of Cost
is taxed such Auditors wages be therein ascertained and allowed them at the discretion
of the Justices of that Court." 60

In the earliest instances, both parties requested assignment of auditors, but
from subsequent cases it appears that defendant alone usually would pray leave
to have auditors appointed, two being the customary number. Usually no reason
was assigned, reference being made to the above "Ordinance of Assembly", but in
one case defendant alleged that "a great part of the Said Debt is already paid." In
another instance, noted earlier, the court for its own convenience assigned auditors
when defendant produced an account in bar of that sued on. 61

The auditors assigned in most cases were either justices or had been, or later
became, justices. Most frequently assigned was Robert Bradley (9), followed by
John White (8), James Stoddart (4), William Barton (3), Thomas Holliday (2),
William Hutchison (2), Samuel Magruder (1) and David Small (1). Others assigned
were William Wilkinson (7), Richard Marsham (2), Nicholas Sporne (1), Christo-
pher Baines (1) and Paul Bussey (1).

In making an assignment the court usually fixed a return date. Apparently
the auditors filed a written report under their hands with the clerk prior to the
return date. In substance, the reports relate that the auditors have stated or made
up the accounts between the parties and found a specified balance or amount due
plaintiff or defendant, as the case might be. In some cases the auditors might
attach an itemized account to their report showing the balance due.

In the latter part of the period covered by the Liber auditors were frequently
assigned in cases involving ordinary expenses, in which case the clerk might be di-
rected to give to the auditors a copy of the ordinary rates fixed by the court. In
this case the account sued on might be abated to conform to the legal applicable
rates.

In Dennis v. Prather, an action of covenant, the court in the August 1699 term,
perhaps on application of defendant, concluded to assigne them auditors, both
parties entering into a recognizance to stand the award made. It was agreed by
both parties that Robert Bradley and James Stoddart "Should ajust matters be-
tween them and returne their auditt by the next Court in ordar to which all the
papers Filed in the office Should be Delivered up to the auditors". Each then en-
tered into a recognizance of £20 sterling to stand the award. 62

In most cases the court entered judgment upon the report of the auditors, in-
cluding an award of costs, without further ado. However, in Charlett's Adminis-
trator v. Graves' Administrator, when the auditors reported in the January 1697/8
court that defendant was indebted unto the estate of plaintiff in the amount of
884 pounds of tobacco, defendant immediately produced testimony under oath

nor noe Attorney in his behalfe then noe Verdict shall be Accepted of by the Court but the Jury
thereupon dismist and a Non Suite awarded against the Plaintiff and he left to the liberty of
Bringing his Action De Novo."

60. 19 MA 516. Cf. 19 id. 224, 246, 511.

61. Infra 288, 439-40.

62. Infra 529, 541.