Bishop v. Baldwin

The opinion of the court was delivered by Redeield, J.

This action of account is becoming so frequent, of late, in our courts, that it is important to examine more in detail the rules by which its process and pleadings were regulated, while the action was in use in England. The case of Godfrey v. Saunders, (C. B. 1770,) 3 Wilson, 94 , is a case very fully argued, and very elaborately discussed from the bench ; and although the Chief Justice regrets, that the suit should have been pending fourteen years, albeit it were without the fault of that court, I must still think, in contradiction of the commonly received maxim, that £ what is done out of time is not well done,’ that this case does embody the substance of all the law, relative to pleading, in this action. The cases are there collated, and the following rules deduced:

1. ‘That whatever matter can be pleaded in bar to the ‘action, must be so pleaded, or it cannot afterwards be ‘ pleaded before the auditors; and this to avoid trouble and ‘ charge to the parties.’

2. That if the party is once liable to account, then all defences must be pleaded before the auditors, exceptplene computavit, and a release, to which I would add, arbitrament and award, former recovery, accord and satisfaction, and the statute of limitations. The propriety of this last defence, as a plea in bar to the action, I know has sometimes been questioned; but it is so pleaded, in the case under consideration, and no intimation is given that it is not properly plead-able.

3. Nothing can be pleaded before auditors, which was, [or which might have been,] decided before the court, [or by the verdict.]

There is, properly speaking, no general issue. 1 Chit. PI. 484. The defendant may plead infancy, or that he never was bailiff or receiver, or that he was not tenant in common, &c., or that he did not sustain the particular relation to the plaintiff upon which the account is claimed. Wheeler v. Horne, Willes. 208. Chit. PI. ubi supra.

*147 If defendant suffer judgment; toj account to pass by nil dicit, he thereby waives all defences which he might have pleaded, and so concedes all the facts stated in the declaration, except his being in arrear. The relation upon which the account is claimed is thus conclusively fixed. The same rule is recognized, in this form of action, in the case of Albee v. Fairbanks, 10 Vt. R. 314, and in Chadwick v. Divoll, 12 Vt. R. 499, and in Hayden v. Bates, Windsor county, 1840, not yet reported. This will exclude the defence here attempted, for the declaration-expressly charges the defendant as partner. A different rule of pleading has been adopted in the action of book account, from the necessity of the case. The generality of the declaration allowed and the multifariousness of the relations, out of which that action arises, would render any system of special pleading absolutely intolerable and almost interminable.

Judgment of the county court reversed, and judgment for plaintiff on the report.