Othniel T. Temple v. Gilbert Bradley, 14 Vt. 254

The opinion of the court was delivered by Redfjeld, J. This is an action of book account, sued before a justice. Plaintiff’s account is $62.00, and defendant’s $ 103.00. The plaintiff appealed the case to the county court. He now moves for judgment on the report of the auditor, for the amount of his account excluding defendants. If this be the result of the statutes upon the subject, it.is singular. I. It is plain, I think, that on the trial before the justice, the defendant could not insist upon his account, except by way of defence, to show there was nothing due the plaintiff on the account.

In current accounts between parties, it is only the balance which forms the debt. Hence it is not competent for either party to select a single item of the account, and sue upon it. ] II.

We think, then, the defendant could not, in the justice’s court, have insisted upon judgment in his favor for the balance his due, because the account, if above $ 100, could not be brought in by way of offset, for the statute provides, that ‘ no demand shall be allowed in offset, in actions before a ‘justice, unless the same would have been within the jurisdic- ‘ tion of a justice, if an action had been commenced there- ‘ on.’ Hence, it is obvious that such an account could not be ‘ allowed ip offset’ in that court. III.

But when the case comes into the county court, by appeal, the statute provides that ‘ the parties shall have the ‘same right to plead in offset as if the action had been ‘ originally commenced in the county court.’ And, although the defendant’s account, in this action, is not strictly a plea in offset, it is very obvious that the sixth

section was intended to admit all matters of offset, which were excluded by the fourteenth section. If that were not so, then, in an action on book, if the plaintiff’s account was less than $ 100, and the defendant’s exceeded that sum, as is contended in the present case, the plaintiff could recover his book account, and defendant could not set-off his, in either a justice court, or the county court. In the one, because it was matter of offset, and in the other, because it was not; ‘ which is absurd.’ IV. But we think this case is with the defendant on the merits, even on the ground of the plaintiff’s argument.

The defendant’s account is made to exceed $100, by charging a note paid and given up, and when there was no propriety in charging it. The defendant should have credited the plaintiff the balance only of the money received of Judson for this was all that had any connection with the account. So the plaintiff charged it originally. In this view the defendant’s true claim did not exceed $100.

We do not think the party is to be driven out of court on a question of jurisdiction, because he has not stated his account according to the facts, any more than if he had carried the cents to the column of dollars, or misstated the foot of the column of debt. Judgment affirmed.