James M. Chadwick & Co. v. Daniel S. Divol, 12 Vt. 499

The opinion of the court was delivered by Royce, J. his is an action of account, wherein the defendant is charged as bailiff and receiver of certain wares and merchandise. It was originally instituted in a justice’s court, and the first question now presented is, whether that court had jurisdiction. The question does not arise in reference to the amount in controversy, but from the nature of the action ; it being objected that no such action at common law, or under our statute relating particularly to the action of ■account, is cognizable by a justice of the peace.

The objection is grounded on the form of trial in this species of action, which is substantially the same under the statute as at common law. It must be conceded at once that the course of proceeding, mentioned in the act referred to, is by no means adapted to a justice’s court; and it is likewise true, that the course there prescribed is in terms made applicable to “ any action of account pending in any court in this state.” This act was passed February 23d, A. D. 1797. The act, defining the jurisdiction of justices of the peace, passed March 4th, A.

D. 1797, confers upon a justice the right to “hear, try, and determine all pleas and actions of a civil nature, (with certain exceptions, among which the action of account is not mentioned) where the debt, or other matter in demand does not exceed thirty three dollars.” This language, with, the like exceptions, is used in the subsequent statutes, which from time to time have enlarged the jurisdiction of a justice. These justice acts are subsequent to the statute relating to this form of action, and their terms are sufficiently explicit and comprehensive to embrace the action of account.

The objection is therefore reduced to this, that since the legislature had seen fit to prescribe a peculiar course of proceeding in the action of account, in whatever court it should be pending,they could not have intended, by the justice acts, to transfer the action in any instance to a court incapable of pursuing the course thus directed.

But it must be remembered, that the statute, containing these specific directions, has authorized an action of account to be brought on book accounts, declaring that “ the same proceedings shall be had therein, as in the common action of account.” And it is well known, that this is the action which is every day brought to enforce claims on book. v It is equally well known, that under the original justice act already cited, justices of the peace acquired undisputed jurisdiction of this latter action of account, which they still retain, regulated, with reference to the amount, by several later statutes.

The order of proceedings set forth in the act of February, A. D. 1797, is therefore controlled and superseded, so far as justice courts are concerned, by these other statutes. And such being the consequences in one class of actions of account, we can discover no substantial reason why it should not follow in the present. The result is, that in this case the justice had jurisdiction. The next question arises on a plea in .abatement, and an order of the county court permitting an amendment. The writ was served by the sheriff of Orleans county, when it was directed only to the sheriff of Orange.

This matter having been pleaded in abatement, the court permitted an amendment of the writ, by inserting a direction to the officer who made the service. We are inclined to sustain the amendment, so far as to prevengan abatement of the suit, without deciding on its effect in legalizing the doings of the officer for collateral purposes.

To this extent we have the repeated decisions in Massachusetts, and, for the reasons on which these authorities proceed, we are disposed to adopt the rule which they have established. 9 Mass; R. 95. id. 217. lido. 276. ' The remaining question arose on the trial of the issue preparatory to the judgment to account. It was insisted by the defendant, who had pleaded that he was never bailiff, fyc, that the plaintiffs were bound to prove a demand upon him, before action brought, to render an account; and that the evidence, offered for that purpose, was illegal and insufficient.

On the last point we are clearly of opinion with the defendant. It does not appear that the messenger of the plaintiffs, who made the supposed demand, had authority to settle, or even to receive, the defendant’s account. His only business was, to exact payment of a specified sum claimed by the plaintiffs. But the important enquiry is, whether, upon the trial of that issue, the plaintiffs were bound to show a demand.

It is contended they were, because a request or demand is alleged in the declaration, and was necessary to perfect the cause of action; also because the plea was the appropriate general issue in the case, and therefore put the plaintiffs on proof of their whole declaration. We think that a demand, or something tantamount to it, was necessary to perfect the cause of action. But we are not satisfied, although a demand is alleged in the declaration, that the plaintiffs were required to prove it under the issue then on trial.

This plea, though said to be the gen- ' eral issue, does not by its terms involve the question of a demand ; nor do we know of any authority in support of the defendant’s position, as applied to the present case. There are other pleas denominated the general issue, as non est factum in debt or covenant on a deed, non cepit in replevin, &c., which are always taken in a sense far more literal and restricted than that for which the defendant contends. And we are fully of opinion that this plea should receive a similar construction.

It was therefore sufficient for the plaintiffs to establish that relation between themselves and the defendant, which alone the plea professed to deny. Judgment of county court affirmed..