| Vt. | May 15, 1853
The opinion of the court was delivered by
The testimony offered by the plaintiff, to defeat the judgment offered in offset by the defendant, was properly rejected. It was no more, nor less, than- an offer to disprove the force and validity of a judgment, by parol evidence. There is nothing to show, that the justice had not jurisdiction of the case, and as it was a judgment given upon confession of the debtor, the amount would make no difference.
As to the claim of the defendant for compensation for his services, in disposing of the trust property, it is no doubt true, that by the English daw no compensation will be allowed, unless by express agreement, or upon peculiar grounds, to be weighed by a court, of equity. At common law, the trustee can never recover, his services being regarded as strictly honorary. That is the case with counsellors, and advocates in chancery, executors, guardians, and indeed trustees generally. But that rule has never obtained in this State. All such officers are here" expected "to be paid, and may recover reasonable compensation, in an action of assumpsit, for "work and labor, and money paid, &c. And the declaration in offset here contains all the general counts in assumpsit. And un
An offset, in this State, is not required to be liquidated, in order to be pleaded in setoff, as is the rule at common law; but here the plea is a mere declaration, and may cover any matter of contract, not expressly excepted in the statute.
And the exception in the statute, of unsettled matters of account, extends only to matters declared for in that form. And it was never considered, as precluding the party from pursuing the matter in assumpsit, if he chose. This is obvious from the subsequent section, allowing the party to plead an unsettled book account, in offset, and have the principal action delayed, until the book account is liquidated, in the usual mode. But this only extends to a plea in the form of book account, and the most unliquidated matters have always been allowed to be declared for, in assumpsit. For the form of our offset is strictly .-a declaration, and not a plea, as at common law.
But I think myself, that the defendant was clearly entitled to retain compensation for his services as trustee, out of .the trust fund in his hands, and that the plaintiff was only entitled to recover the balance; so that, strictly speaking, there was no more necessity for a declaration in offset, in this ease, than in any case of a factor, or agent, or attorney, which has often been decided. And to me, it seems, that it can make no difference, whether the compensation of the trustee, is given by express or implied contract.
Judgment reversed, and case remanded for a new trial.
Note. — Our statute of setoff is different from the English statute, in many particulars. 1. In extending to all matters of contract, express or implied, liquidated or not. 2. It allows the plaintiff to reply, by way of. declaration, on any matter of contract, express or implied, &c., and the jury are to find the balance. 3. Unliquidated accounts being excepted and provided for in another section, this is held to extend only to matters which the party seeks to recover in the form of “ book account,” as termed, and in § 8 is “ demand on hook,” which we considered synonymous with the terms “ Any sum due on account,” .&c., “unsettled,” in $ 4.