The opinion of the court was delivered by
Redfield, J.
The rules of pleading, in the action of account, were correctly laid down, we think, in the case of Bishop v. Baldwin, 14 Vt. 145.. If the rule there laid down admits of any farther qualification, than the exception there named, it does not now occur to us. It is there said, that “ what may be pleaded in bar must be so pleaded,” and that “ all defences, which might be pleaded in bar, if not pleaded.are considered as waived,” — which are only identical propositions in different terms. It is there determined that the judgment to acccount establishes all the facts in the declaration, except the defendant’s being in arrear. See Taylor v. Page, Cro. Car. 116, as fully confirming the rule laid down in Bishop v. Baldwin.
This, then, would seem to be the only inquiry in the 'present case, — Was the defendant in arrear to the plaintiff at the time of the accounting before the auditor ? This is, I am aware, almost precisely the same inquiry, which might have been raised, before the court and jury, upon a plea of plene computavit, but not precisely the same, perhaps. The defence of plene computavit seems to rest, upon the ground of an express settlement of the dispute and the surrendering of all the property pertaining to the trust, while that of nothing in arrear goes upon the ground that there is nothing now in the defendant’s hands, which he is liable to account for. This *477may be shown in various modes, — as, for example, that it has been handed over to the plaintiff or to a third person by his direction, or that it has been destroyed, or has perished without the fault of the. defendant, B. N. P. 128. Thomas’ Co. Lit. 166, note 19. Co. Lit. 89 a. 2 Ch. Cas. 2. Hargrave’s notes to Co. Lit., n. 5,89 a, (75.)
There seems to be no question in the case, except as to the Towanda money received of Chickering.. There is no pretence for charging the defendant with the note of Chickering, taken for the balance of the former note; — for it is as good as the former note, to that amount, and it was accepted by the plaintiff, and was treated as his own up to the time of the trial before the auditor. In regard to the Towanda money, we think the defendant is not in arrear. The obligation of the defendant, in regard to the matter, must be according to the contract, as he understood it. He was only bound by the contract according to his own understanding, unless there was fraud, or some fault on his part, in not comprehending the plaintiff’s instructions, — which is not shown, and will not be presumed. Perhaps it ought, rather, to be supposed that the plaintiff was deficient, in not fully expressing his meaning. Taking the defendant’s obligation in this sense, it seems to us, that he cannot be made liable in this action.
1. If it be conceded that the defendant was guilty of negligence, in taking this money without farther inquiry into its, .character, it could hardly be considered a case of gross negligence, whereby he would make the money his own, and render himself liable to account for it, as for current bills. For he took the precaution to have Chiekering’s guaranty, with surety; and when all the facts were made known to the plaintiff, he took the money and the guaranty, saying he would see what he could do with it, — which he would not have done, had it been a case of palpable neglect. His conduct satisfies us, that, at the time, he considered that the defendant had done well, and that he had done as the plaintiff would have done himself, or as any prudent man would have done. It was not an easy matter to ascertain the character of Towanda money, perhaps, in Wisconsin. If it were good, he would wish to have it; if not, the guaranty made the claim no worse, at all events, than the note, and probably better. The most that could be claimed in *478the case is, that there was some neglect, some want of ordinary care, which could only subject the defendant, I apprehend, to a special action upon the contract, and not make him liable to account for the money as good money. But there seems to us to be no satisfactory evidence in the case of any neglect. If there was neglect, and that is important, it should have been found by the auditor as matter of fact; but we think the auditor reports such facts, as virtually shows that there was no neglect.
2. It seems very plain to us, that the plaintiff’s taking the mon- , ey and guaranty, and keeping them for months, fully exonerated the defendant. The plaintiff received of the defendant all that the defendant received of Chickering, and all that belonged to him, under protest, to be sure, that he would see what could be done with the money. How long a time is to be allowed him, to ascertain that fact ? It could hardly be pretended that two or three months were necessary to ascertain that fact. It could just as well be done in as many weeks, ^and very likely in as many days. The credit of a bank can be more easily ascertained in Vermont, and especially in Boston, or New York, than in the wilderness, or the prairies of Wisconsin, where one might almost as well inquire, for such a fact, of an Indian hunter, as of the American land jobber.
3. Suppose the plaintiff’s delay to ascertain the character of this money and to notify Chickering has released his guaranty, — could the loss be made to fall upon the defendant? This no one will pretend; which shows that the plaintiff had made the money his own. I do not pretend to say that the delay here will exonerate Chicker-ing, but I put the case to illustrate the effect of the delay. We think it clear that the delay was such as to exonerate the defendant. By a reference to Hill’s New York reports, I find that this subject has, to some extent, been under discussion there. (Thomas v. Todd, 6 Hill 340.) It is there held that payment in counterfeit bills, or in the bills of a bank which has failed, although this fact is not known to either party, is a nullity, ' and will not discharge the debt. The same had been decided in this state. Gilman v. Peck, 11 Vt. 516. The case of Thomas v. Todd, decides, too, as did also that of Gilman v. Peck impliedly, that, if the party receiving the bills is guilty of negligence, in not returning them within a reasonable time after he discovered, or might have discovered, their worthlessness, he will *479be obliged to sustain the loss. But the consideration of this point is not important, except as it shows how manifestly the defendant is exonerated from all responsibility. Very likely the obligation of Chickering, upon his guaranty, may be different from the implied obligation resulting from merely giving the bills in payment, without fault.
Judgment reversed, and judgment for defendant, upon the report