Closson v. Means

Appleton, J.

’The action of account, though regarded: as an antique remedy, seems to have been occasionally adopted in most of the States. Gratz v. Phillips, 3 Bin. 474 ; Wilson v. Wilson, 2 South. 791 ; Smith v. Woods, 3 Verm. 485 ; Green v. Johnson, 3 Gill. & Johns. 388; McPherson v. McPherson, 11 Iredell, 391; Hale v. Hale, 3 Day, 377 ; Kelley v. Kelley, 3 Barb. 419 . It was resolved, in Fowle v. Kirkland, 18 Pick. 299 , that this form of action was maintainable in Massachusetts, before its abolition by R. S., c. 118, § 43. In this State, it is expressly sanctioned by R. S., c. 115, § 57, and there have been occasional instances of its use.

In England, this form of action became almost obsolete, but in Scott v. McIntosh, 2 Camp. 239, which was an action of assumpsit, brought to recover the balance of a running account of many years standing, and consisting of over a thousand items, Lord Ellenborough held, when the cause came on for trial, that “ the action of account was the proper remedy,” and nonsuited the plaintiff because “ those who wisely framed our jurisdiction did not. contemplate a long account between merchants being referred to a jury.” “Let the plaintiff bring his action of account,” he added, “ and auditors will be appointed who will do justice to the parties, without producing any inconvenience to the public.” So the plaintiff was not to recover in consequence of the number of unpaid items due from the defendant. But in Tompkins v. Wilshear, 5 Taunt. 431, it was held, that assumpsit would lie for the balance of an account, notwithstanding the items might be numerous, it being difficult to perceive why, if this form of action might be maintained for *341 one item, it might not for more. Arnold v. Webb, 5 Taunt. 431, n. In England, this form of action appears to liavo been occasionally adopted in their different courts. Stanton v. Richardson, 13 Mees. & Weis. 17; Archer v. Prichard, 3 Dowl. & Ry. 596.

In the action of account there are two judgments; the first interlocutory, that the defendant do account; and the second, that the plaintiff do recover such amount as, upon accounting before auditors appointed by the Court, the defendant may be found in arrear.

The first judgment determines whether the relations between the parties exist, which give the plaintiff' a right to an account. Upon this no damages can be awarded, for it may be, the defendant, after he has accounted, may not be found in arrear. “Whatever matter,” says Wilmot, C. J., in Godfrey v. Saunders, 3 Wils. 94, “ can be pleaded in bar to the action, must be so pleaded; and that whatever may be pleaded in bar, cannot afterwards be pleaded before the auditors, the reason is plain, given in Styl. 411, and in a Ms. note of Rolle, which I have, it must be so pleaded, to avoid trouble and charge to the parties.”

Before the auditors no plea can be filed which would have constituted a bar to the action, “because it would introduce either contrary verdicts, or two verdicts of the same, which would be absurd.” But there are a variety of pleas, which not being in bar of the action, may be filed before the auditors. 1 Com. Dig., Accompt, E, 11. “The proper manner of proceeding in account rendered,” says Tilghman, C. J., in Crousillat v. McCall, 5 Binney, 433, “is to take issues before the auditors, of all matters alleged by one party and denied by the other, either of fact or of law, which are then decided by the Court and jury. The auditors then finally settled and adjusted the account. If either party desire to join issue, and the auditors refuse permission, the Court will set the matter to rights. Exceptions to the report of auditors, after the same has been returned, are irregular and of no effect.” If no issue in fact is raised, the *342 report of tlie auditors is final, unless some reason is shown for setting it aside by reason of misconduct on their part. When the report of the auditors is accepted, the judgment then is, that the plaintiff do recover against the defendant the sum found due by the auditors.

In this case the defendant insists, 1st, that the appointment of the auditor was erroneous, and that the whole matter must on that account be again referred. By recurring to Godfrey v. Saunders, 3 Wils. 72, where the whole record in an action of account is fully set forth, the proceedings here are correct. The plaintiff, according to the record in the case just referred to, comes into Court by his attorney, and the defendant in his proper person, and the defendant “fairly offers himself to account with the plaintiff,” &c., whereupon auditors are assigned by the Court “ to take and declare the said account” between the parties. The statute, R. S., 115, § 49, authorizes the appointment of “one or more auditors to hear the parties, and examine the vouchers and proof, and state the accounts and make a report thereof to the Court.”

The authority thus given, and the duty thus imposed upon auditors, is substantially the same as that conferred upon them by the common law in this form of action. Indeed, it has been decided, that when auditors are appointed to audit accounts in actions of debt, book debt, &c., the same proceeding shall be had as in the proper action of account. Manley v. Collins, 4 Har. & McHen. 65. As this form of action is recognized in § 57 of the statute giving the Court authority to appoint auditors, it cannot be doubted, that the powers and the duties of auditors would be the same in all eases in which their appointment should be required. The commission, therefore, under which the auditors proceeded, whether it be regarded as at common law or under the provisions of the statute, must be regarded as substantially correct.

2. It is next objected, that the auditors have not, though requested, reported specifically the facts for the considera *343 tion of the Court. This they were under no obligation to do. It is not required of them at common law, and is made no part of their duty by statute. The neglect or refusal to do what could not lawfully be required of them, furnishes no just ground for exception.

3. The defendant insists, that be may now be permitted to form an issue and try his rights before a jury. But this-cannot be. No sucb claim appears to have been made before the auditors. No plea was then filed, and no issue joined and certified. The parties submitted to the jurisdiction of the auditors. In Wilson v. Wilson, 2 South. 791 , after judgment that defendant account had been rendered, auditors were appointed, who reported in favor of the plaintiff. The objections to the report were, that they had determined certain disputed questions- and had acted as arbitrators. In giving tbe opinion of the Court, Kirkpatrick, C. J., said, the auditors have stated the account, they have delivered it into Court, there have been no denials-made, no issues taken upon it; the balance is declared and judgment entered; there can, therefore, bo no errors assigned, but such as are apparent upon the face of tbe record itself.”

No error is perceived in the proceedings. The exceptions must be overruled.

Exceptions overruled.

Judgment for plaintiff.