Weed v. Smull, 7 Paige Ch. 573

Weed v. Smull

7 Paige Ch. 573 | New York Court of Chancery | 1839

The Chancellor.

The first objection which is made to the defendants’ plea in this case, is that they have not annexed copies of the stated and settled accounts, which they plead in bar of any account in relation to the copartnership business previous to the 16th of June, 1836. It is evident that the complainant has entirely mistaken the principle upon which this objection was intended to be based; and that the objection could not have availed him any thing, *575even if he had not deprived himself of the power to urge such an objection, by waiving the necessity of an answer on oath. The principle, as stated by Lord Hardwick, in Hankey v. Simpson, (3 Atk. 303,) is that where a bill is brought to impeach a stated or settled account, and the complainant not only impeaches the account but also charges that he has no counterpart thereof, and prays that the same may be set forth in the answers, the defendant, if he pleads the stated account in bar, must annex a copy thereof to his answer in support of the plea. Lord Redesdale refers to this principle; though he does not in terms confine it to a case where the bill admits that there has been an account stated between the parties, and seeks to open it upon the ground of error therein. (Mitf. Pl. 4 Lond. ed. 259.) It is evident, however, from the language used, that he is speaking of a bill to impeach or open an account stated, and not of a general bill for account, as this is. (See also Story’s Eq. Pl. 617, § 802. Davies v. Davies, 2 Keen’s Rep. 534. 2 Daniel’s Ch. Pr. 189.) Indeed there would be no use in applying such a principle to a plea in bar to a general bill to account, to which such a plea is put in; as the object of annexing the copy of the account to the answer in support of the plea, is to enable the complainant to counterprove the general averments, in the plea, negativing the charges of errors in the account stated; where such errors appear upon the face of the account. And it is the settled law of the court, that where the complainant files a bill for a general account, and the defendant sets forth a stated one, the complainant must amend his bill; as he will not be permitted to show error in the stated account, at the hearing, where there is no allegation in the bill of any such error. The stated account is prima facie a bar, until the particular errors in it are assigned. (Dawson v. Dawson, 1 West’s Rep. 170. Sumner v. Thorp, 2 Atk. Rep. 1.) In the present case this objection to the plea could not be sustained, even if the bill had been brought to impeach the account, and alleging specific errors therein; as the copy of the account annexed to the answer is no part of the plea, but is only a part of the discovery which the complainant may call for by his bill. *576And by waiving an answer on oath the complainant relinquishes all claim to a discovery, from the defendant, in aid of his suit. No answer whatever in support of the plea was therefore necessary.

Neither can I see any foundation for the objection that the answer overrules the plea. This is not a case in which a discovery is made, by the answer, of matters which the defendant by his plea insists he is not bound to discover; for the plea in this case is confined to a.part of the relief, sought by the bill, the whole discovery being waived by the complainant. And the allegation in the answer, as to the money being brought into the firm by the complainant and taken out again by him a few days afterwards, was not made as a defence to the accounting previous to the 16th of June, 1836, nor for the purpose of charging the complainant with the monies so drawn out. It was probably an. unnecessary answer to what was an immaterial allegation in the hill..

The plea must be allowed with costs ; and the part of the bill covered by the plea must be dismissed, unless the complainant thinks proper to take issue on the plea, upon payment of the costs of the hearing thereon, within the time specified in the 47th rule of the court.