John Delaware vs. Alvah B. Staunton, 8 Vt. 48

The opinion of the court was delivered by Williams, Ch. J. in this case, which is an action on book, the defendant plead three several pleas in bar, to which there was a general demurrer. The county court rendered judgment for the plaintiff, to which exceptions were taken. The pleas are evidently bad. They amount to payment and nothing more; and whether considered according to the rules applicable to the action of account at common law, or to our action on book, such pleas are not to be received in bar of the action, but in discharge of the account before auditors.

As a general rule, any matter which admits the defendant to have been once accountable or chargeable, although it goes in discharge, must be plead before auditors, and not in bar. The distinction which was early made in this action, was, that the judges were judges of the action and not of the account, but the auditors were judges of the account.

A release of the action was held to be a good plea in bar, but a payment to the plaintiff himself, or by order of the plaintiff, or that the plaintiff had acquitted the defendant of the sum demanded, which amounted only to payment, could only be taken advantage of before auditors. But further, by the system established by the statute, and the decisions of the court thereon in relation to the action on book, these pleas could not be allowed. They put in issue facts to which the parties may testify. It has been repeatedly decided that both the parties are competent to testify in relation to payment.

As these pleas would put the question of payment, settlement, &c. in issue before the court and jury, when the parties cannot be sworn and testify, instead of putting them in issue before auditors, where the parties are competent witnesses, they cannot be sustained. Further, these pleas do not and cannot answer the whole demand of the plaintiff. The auditors are to adjust the accounts between the parties to the time of auditing, without reference to the comencement of the action.

Hence, although a suit may be commenced on account, before the time of credit had expired, yet, if it had expired befpre the hearing, by the auditors, and the sum due is not paid, the plaintiff is entitled to a judgment. These pleas do not profess to answer any claim of the plaintiff later than the 10th of January, 1833, although they were filed in court two months subsequent to that time. It is said, that the plea meets the whole account proferted by the plaintiff, in answer to the prayer of oyer made by the defendant.

It may be answered, that the plea should meet the whole action, and not merely the bill of particulars. It may also further be answered, that by the decisions of the courts, as recognized by chief justice Skinner, in Reed vs. Barlow, 1 Aik. 145, and by judge Phelps, in Loomis vs. Barrett, 4 Vi. Rep. 450, a plaintiff is not bound by his account as proferted, on the plea of oyer, and the defendant may not assume that the account thus proferted, is the whole which will be presented and controverted before auditors.

On this ground the pleas cannot be considered as defending the whole cause of action.'— The judgment of the county court, therefore, that the pleas were insufficient, was correct. We have also noticed the objections which have been made to the judgment of the county court, in accepting the report of the auditors, and do not find them well founded. As to the first objection, it is sufficient to say, that it has been too often decided, that the parties are competent to testify as to the question of settlement or payment, to permit it now to be argued.

The plaintiff was competent to testify in relation to a settlement. On the second objection, we can see no reason why the defendant should not be made chargeable for the whole account of the plaintiff. There is no foundation for the allegation, that the defendant can ever be made liable to Butler and Peaslee, on the order of twenty dollars, drawn by the plaintiff on the defendant, in December, 1832, after what has taken place between them and the plaintiff. The judgment of the county court must be affirmed.