Ashley v. Hill

6 Conn. 246 | Conn. | 1826

Daggett, J.

The count upon an insimul computassent is the only one, which requires examination. The single question presented for consideration, is, Does the statute which limits a recovery, in the action of debt by book, to six years, create a bar to this count ?

Assumpsit upon an insimul computassent, is an action at common law, long established and well known. When parties account together concerning their mutual transactions, debts, credits and liabilities, and a balance is ascertained, their accounts assume, to some purposes at least, a new shape. The creditor becomes entitled to recover the balance due to him, in an action founded on the fact, that it is acknowledged by the debtor, on an adjustment of their respective claims.

It is, indeed, said, that such adjustment notwithstanding, the creditor may have his remedy in the action of debt by book. This is not denied ; and I think such has been the practice ; but its influence on this question is not perceived. This only shews, that the creditor may resort to his first cause of action, as the debt by book is not extinguished; but it does not prove, that he is without remedy in assumpsit, for an ascertained balance on his new right of action.

It is also said, that in Robbins v. Harvey, 5 Conn. Rep. 335. this Court decided, that the statute of limitations was a good bar to an action of assumpsit for goods sold and delivered, as the articles were rightfully chargeable, and were in fact charged, on book. I am satisfied with that decision. It was improper and inadmissible for the creditor to evade the operation of the statute limiting book debts to six years, by resorting to another remedy for the same cause of action ; and this is conformable to precedent.

In the case before the Court, the debtor, by his own act, subsequent to his becoming indebted, has furnished to the plaintiff a new and distinct remedy,-another ground of recovery. There is nothing novel in the idea, that a creditor may elect either of several remedies for the satisfaction of his debt.

The statute in force before the revision of 1821, in the terms of it, did not extend to actions on insimul computassent; nor do I believe, that it ought to be so extended, by construction; especially, as by a subsequent enactment now in force, (Stat. 310, tit. 59. s. 3.) this action of assumpsit is limited to six years.

As the idea was suggested by the counsel in argument, that the provision of the statute pleaded, (Stat. 102. tit. 25. c. 2. ed. 1808.) saving the right of recovery on book debts, where the account had been settled in the manner therein pointed out, might apply to this plea, it is proper to remark, that I do not assent to that suggestion The plaintiff, to avail himself of that provision, should have shewn, in a replication, that his case was within it. The plaintiff and defendant may have accounted together, in manner as is alleged in the declaration, and yet not in the way directed in the statute, so as to prevent the limitation from attaching on the book debt.

I am of opinion that the plea is insufficient; and that judgment be rendered accordingly.

The other Judges were of the same opinion.

Plea insufficient.