Smith v. Bradley, 39 Vt. 366

Smith v. Bradley

39 Vt. 366 | Vt. | 1867

The opinion of the court was delivered by

Steele, J.

It is by statute that the action of account is made sustainable on book account. The other causes upon which account lies involve some special relation of express or implied trust as that of partner, bailiff, receiver or co-tenant. The several items of a book account, on the contrary, instead of being mutually dependent or growing out of some single relation betweeh^ihe^parties, may b& each, in effect, a distinct case, involving its own peculiar issues. If the defendant was required to plead to these items before reaching the auditor and the hearing was delayed until the various issues, some to the court and some to the country, were determined, the proceedings would be cumbersome, expensive and protracted, and the original intention of tlie statute to afford a cheap, simple and expeditious remedy would be utterly defeated. Therefore, although the *369action on book account is governed by the same general rules of procedure as other actions of account. It has been thought impracticable to treat pleas which in other actions of account would bar a judgment to account as “ pleas which being true the defendant ought not to account” on book. From the necessity of the case the trial on book account is mainly and usually before the auditor. The interlocutory judgment ,or judgment to account is little more in point of conclusiveness, when the action is founded on hook account, than an ordinary order of reference. Even the non joinder of the defendant is a matter of defence before the auditors. Smith v. Watson, 14 Vt. 332; Hogar v. Stone, 20 Vt. 106. So too, after a judgment to account by default, final judgment in chief may be rendered for the defendant. Gordon v. Potter, 17 Vt. 348. The right to plead in bar is as limited as the right to defend before the auditor is extended. Release may not be pleaded in bar, unless perhaps where it is a release of the action, as well as the account. Delaware v. Staunton, 8 Vt. 52. The-release, which was properly pleaded in Judd v. Blake et al., 14 Vt. 410, was a release of the action made after the hearing by»the auditor. The old rule' that all pleas in bar which admit an original accountability, or depend on the plaintiff’s account are bad, seems to have been applied more strictly in book account than in other actions of account. Porter v. Smith, 20 Vt. 344. The statute of limitations has been held, under some qualifications, to be a proper defence by plea, in ordinary action of account; 1 Bouv. Bac. Ab., 51 ; Bishop v. Baldwin, 14 Vt. 146, but; uuder the rule of the adjudged cases in this state, it is clearly not pleadable in bar in an action on book account. It does not stand upon even as strong ground as a release because the lapse of the statutory period does not extinguish the right. The plea of the statute is entirely dependent upon the plaintiff’s account. It admits an original accountability. Such defenses are, as we have seen, a proper matter of consideration before the auditor only.

Judgment affirmed.