Henry McLaughlin vs. Lyman Hill, 6 Vt. 20

The opinion of the Court was pronounced by MattocKS, J. — Several questions are now presented upon the report of the auditor. First, was the previous judgement before the Justice a bar to this action ? The 8th Sec. of Stat. relating to accounts says, “The auditors shall adjust all accounts existing between the parties of a similar nature and in the same right to the time of making their •eport;” and the 4th Sec. of the Justice Act, No. 3, authorizes a Justice to enquire of the parties upon oath relative to their respective accounts. These, it is believed, are the only statutes that affect this question.

In pleading a former recovery in bar in assumpsit, it is necessary to aver that the recovery was for the same identical promises, in the declaration mentioned. The plaintiff, in his replication, may admit the recovery of the judgement, but allege that the damages so recovered were not, nor are any or either of them the same identical promises in his declaration mentioned, but other & different promises, and then re-assign the promises in his declaration : and then the defendant may traverse the promises in the new assignment, and conclude to the country.

When the issue is made to try the question whether the former recovery was for the same cause of action, (Story Plead. 133) and the question in such cases is whether the same cause of action has been litigated and considered in the former action ; and in Seddon et al vs. Tutop, 6 T.

R. 607, on nearly such a state of pleadings as before mentioned, the case was, that the plaintiff, in a former action, declared on a promissory note, and for goods sold and delivered ; but in executing a writ of inquiry after default, [gave iro evidence on the count for goods sold ; and took his damages for the amount of the note only. And it Was ruled that the judgg*. ment thereupon, was no bar to his recovering irréfsúbse-quent action for the goods sold. And-in 'debt on simple contract, the form of pleading mutatis mutandis, would, it seems, be the same.

And on specialties, the condition of the obligation would shew the causes of action to be identical. Suppose a former recovery then, in this case, had been plead in proper form, would not the facts found by the auditor, that the account now claimed was not submitted to the Justice, and that the time of payment had not elapsed, coming out in the replication, be a good answer to the plea ? In the case cited, there was no reason for not proving the demand before the jury. But the fact that the plaintiff did not attempt it, saved his claim.

Here in this suit the same contract exists, and a very fair reason for his neglect, this part of his debt’had not becomeMue. The Justice act quoted,jsays nothing as to down to what time he shall adjust the accounts, like the act relating to auditors. And the act relating to the duties of auditors, does not in terms touch the doings of a justice. But if the justice ought, in ordinary cases, to regard the meaning of it, and adjust the accounts as they should be, yet for good cause perhaps there should be some exceptions.

But as the statute does not say that what is not adjusted, shall be barred, and in analogy to other judgments and to the case of a general submission to arbitrators, who omit to act on a particular demand, it would not seem expedient to put so harsh a construction upon the statute1, as to extinguish a debt that for a good reason had not been presented nor adjudicated upon: There was no former recovery for this cause of action, nor had this demand been sitbjudice. The next question is, was it competent for the plaintiff to show by parol that the charges in question were not adjudicated upon by the Justice.

The burden of proof in the first instance was upon the defendant to show that they had been; but by his producing the records of the judgment rendered after the date of the charges, it would be presumptive evidence that these items were included, if there was no copy of the account, or other minutes of the Justice to show the contrary. If a copy of the account had been produced, on which the judgment was rendered, it would have been conclusive evidence; and then it was incumbent upon the plaintiff to disprove this presumption.

And how could that be done without the testimony of some one who knew and recollected how the fact was ? Where a former recovery is plead in bar to an action of trover for goods, and where the descriptions do not render it certain that they were the same goods, (which indeed no description can make conclusively, &c.) how is the fact to be ascertained but by proof on either or both sides? And in recoveries in assumpsit on the common counts, where there has been no specification, there could be no approach to certainty without such proof.

And if it could not be admitted, such counts should be expunged from the record, and no recoveries permitted upon them, as affording no protection to the defendant. Our declaration on book account in this respect is like the common counts for goods sold and delivered. Parol testimony then was admissible to show that the items of the plaintiff’s account, now sued for, were not presented nor considered by the justice. The last question is, whether the plaintiff was a competent witness to this point. In Stevens & Stevens vs.

Truesdell et al., 2 Aik. 81, it was decided that the parties in an action on book account are competent to testify to every fact in relation to their accounts’proper to be considered in deciding upon the respective claims of the parties j and in May & Wells vs. Corlew, 4 Vt. R. 12, this decision is quoted and approved by the court. And what other principle can be applied to such cases ? Is not the maxim as true in law as in ethics, that the truth half told is a lie ? In a case, Paul vs.

Prescott, in Caledonia County, (not reported) it was decided that the plaintiff should not be allowed to testify to a new promise to revive an account against which the statute had run. This is the only exception that is known to have been made to the broad rule before stated; and such testimony is not relating to the original merits of the case, as the object of insisting upon the Statute of Limitations is to preclude that inquiry. Whether there may be any other exception is not now in-question; but no reason is perceived for making the case at bar one.

The plaintiff then was competent to testify as permitted by the auditor. His testimony was in effect to show that his claim had neither been paid nor liquidated, but was still open and due. But it has been said that there can be but one balance between the parties.

Yet it has always been held that if the defendant does not present his account, he may afterwards sue and recover upon it; and the legislature have recognized this to be the law, by declaring in No. 8 of the justice act, that where it shall appear that the defendant had personal notice, in the first suit, he shall not, when he turns plaintiff, recover cost. Here then there may be balances both ways. In this case, as it is not uncommon in these actions of book account, the novelty, peculiarity and danger of these have been descanted upon as reasons for holding the parties to great strictness in the proceedings.

And it has been said that this action is unknown in Christendom except in Connecticut and Vermont. It is supposed that the substitute of this form of action was brought to New-Englánd by a dissenting English minister from Holland, not long after the arrival of the pilgrims. "However this may be, it is certain that under different modifications it has existed for a long time and still does exist in all the States of New-England except perhaps Rhode Island.

And in New-Hampshire, at least when the ancient practice was to have the jury audit the account, within a few years by statute, it is provisionally referred to auditors, approximating to the Connecticut mode, which in this State was taken as a model; and in no instance is it known that any State has abolished this action after experiencing its results according to our practice. In this action there are very few new principles. It is chiefly a new combination of knoyvn common law and chancery principles.

It is the ancient action of account enlarged to comprehend not all, but a large class of cases; and the chancery mode of proceeding by bill and cross-bill, with the addition of allowing each party to tender his own oath, as well as demand that of his adversary; with also the improvement of having the parties confront each other, and be subject to an open cross-examination, the great test of truth — all other proofs also admissible as in other actions; and men of general intelligence and especially conversant with the nature of the claims in dispute, selected for triers, with the supervisory power of the court in points of law; and all this in a plain and direct manner, unincumbered with forms.

How are accounts collected where this remedy does not exist? By the fair appearance of the entries — by the testimony of the clerk, or if he is dead or absent, by proof ofhis hand-writing; slender grounds against premeditated dishonesty, or mere blunders even in the principal or agent. And in this bartering country, where every one trusts and gets trusted, how few keep a clerk !

In complicated accounts the parties are obliged to go to chancery; and although sometimes painful collisions happen between the parties upon oath, yet how many honest accounts are paid without suit, which would be lost but for this known remedy !

And as to settling controversies by the oath of the parties, this to some extent was directed by Jehovah himself in that more than human code delivered to the Jews, and from which most of the ancient nation stook much of what was valuable in their several systems; and from which also mediately the civil law, that masterpiece of human wisdom, which was the admiration and imitation of the civilized world, drew many of its perfections, and this among the rest. And where now is the judicial system of any Christian country, where the oath of a party; in some form or for some purposes, is not permitted ?

For myself, I do not consider the Yankee action of book account obnoxious to the forensic criticism so often and so elaborately bestowed upon it; nor that sound policy requires us to impugn any decisions that have heretofore been made by this court in relation to the rights of the parties to testify, f think this right has been placed upon its true basis. Stevens & Dewitt for plaintiff. Smalley & Mams for defendant. The county court accepted the report of the auditors, which judgment is affirmed.