32. The plaintiff made for L an organ case, be charged on book, and may, in such case, be and delivered it before being fully finished, and recovered for in this action. Gleason v. Briggs, charged it to L on book. I sold it to the de- 28 Vt. 136.

fendant, who agreed with L to pay the plaintiff 39. Where there are running and mutual therefor, and the defendant informed the plain-accounts between parties, and there is an agreetiff of the transaction, and the plaintiff there-ment or common understanding that items not upon erased the name of L from the charge and properly chargeable on book--as taxes paid by inserted that of the defendant. Afterwards the one for the other-shall be adjusted and setplaintiff delivered to the defendant the pillars, tled with their other accounts, they may be intrimmings, &c., to finish the case. Held, that cluded in the account and be recovered for in the price of the case was recoverable of the de- this action. Noyes v. Hall, 28 Vt. 645. fendant in the action of book account. Pang- 40. Breaches of contract, and matters of born v. Saxton, 11 Vt. 79. 15 Vt. 575. unliquidated damages of various kinds and de33. Price conditional. The plaintiff sold grees, may be brought into the adjustment of the defendant a mare for a specified sum, but mutual book accounts in the action of book acif she should prove to be with foal the defend-count, if such was the previous express agreeant agreed to pay four dollars additional to a ment, or the mutual expectation of the parties. third person to whom the plaintiff had agreed Chamberlain v. Farr, 23 Vt. 265.

to pay that amount. The mare having proved 41. A claim of damages for a trespass or with foal, and the defendant having refused to tort may become a matter of contract by the pay the $4.00;—Held, that the plaintiff could mutual agreement of the parties, and be recovrecover that sum in an action of book account.[erable in book account; but not without such Dryer v. Hall, 22 Vt. 142. agreement. Stone v. Black, 37 Vt. 25. Hassam 34. Article lent. Where an article is lent v. Hassam, 22 Vt. 516. Stearns v. Dillingham, and there is a right at the time to charge for 22 Vt. 624. Winn v. 35 Spragne, Vt. 243. the use of it, its value may be recovered in an 42. Where an item not properly chargeable action of book account where it is worn out in on book was presented before the auditor, and the use-as a wagon wheel lent- and the form the only objection made to it was that it had of the charge, whether for the use of the arti-been paid, and the auditor found that it had cle, or for the article itself, is not material. not been paid ;-Held, that objection could not Stone v. Pulsipher, 16 Vt. 428; or for damage be thereafter taken that the item was not a to the article. Gassett v. Andover, 21 Vt. 342. proper one to be adjusted in the action on book 35. The defendant hired of the plaintiff, for --consent to the adjustment being implied. a stipulated price, a derrick to use and to be Peck v. Soragan, 27 Vt. 92. returned in as good condition as it then was, 43. The defendant held, as his security for except the ordinary and natural wear. It was his obligation assumed for the plaintiff, a mare broken in the use, and the plaintiff got it re- and colt of the plaintiff. He sold the mare for paired. In an action of book account ;-Held, enough to satisfy such obligation and retained that the damage to the machine was caused by the colt, admitting his liability to account for the use, and that a depreciation of its value in them and expressing a willingness to do so consequence of the use, to the extent of the re- when the plaintiff would settle with him all pairs made, was properly adjusted in the ac- matters between them. In an action of book count for the use. Woodward v. Cutler, 33 Vt.|account ;-Held, that the proceeds of the sale of the mare, and the value of the colt, were 36. Some nails were borrowed of the plain- proper matters of charge and adjustment in tiff to be paid for in nails again. Held, that the action. Cobleigh v. Stone, 29 Vt. 525.

49.

this was rather a purchase to be paid in kind,

44. The defendant's cattle having trespassed

than a borrowing for use; that the nails were upon the plaintiff's land and damaged his crop properly chargeable on book, and that the item was recoverable in this form of action. Cass v. Mc Donald, 39 Vt. 65.

of oats, through the defect of a division fence which both parties were under an equal obligation to keep in repair, the defendant, on being reminded by the plaintiff of the damage done,

2. As affected by agreement and course of dealing. told the plaintiff that he would allow him what

was right for the oats when they came to settle. 37. Matters not in themselves strictly charge- Held, that this did not amount to a consent to able on book may, not only by express agree-a change in the form of the liability, and warrant ment, but even by agreement implied merely a recovery in an action of book account. Winn from the parties' course of dealing, be adjusted v. Sprague, 35 Vt. 243.

in the action of book account. Scott v. Lance,

45. Rent, or the use of land, or other mat

21 Vt. 507. Case v. Berry, 3 Vt. 332. Hall v. ter not properly chargeable on book, may be adEaton, 12 Vt. 510. justed in the action of book account by appli

38. Executions and notes may, by agreement, cation as against charges on book agreed or un

derstood to be so adjusted, and claimed ondant preparing the work. Held, (1), that the trial. Farrand v. Gage, 3 Vt. 326. 12 Vt. plaintiff could not charge and recover, in this 512. Case v. Berry, 3 Vt. 332. Gunnison v. action, for lost time on account of not being Bancroft, 11 Vt. 490. 25 Vt. 40. Chamber- kept constantly supplied with work;-this is lain v. Farr, 23 Vt. 265. but damages for the defendant's neglect ;—(2),

46. If a party charges any matter upon that he could not, for this reason, and without book, and claims to recover for it in the action notice to the defendant, charge his services by of book account, he cannot object to the other the month. Blanchard v. Butterfield, 12 Vt. party's bringing into the account any other 451.

matter, though not properly chargeable and re- 57. By contract between the parties, the coverable on book, upon which it was agreed plaintiff was to furnish plough irons, the defenthat such charge should apply. Gunnison v. dant to wood them and return half the ploughs. Bancroft. Farrand v. Gage. Fassett v. Vin- The defendant set aside, as the plaintiff's propcent, 8 Vt. 73. erty, twelve ploughs thus wooded for him under the contract, six of which were afterwards attached and sold on execution as the property of the defendant. Held, that the plaintiff could not maintain an action of book account for the value of the six ploughs so sold. Tyson v. Doe, 15 Vt. 571.

III. WHEN THE ACTION DOES NOT LIE.

47. The action of book account does not lie for a wagon, delivered on a written order containing a special contract as to the time and manner of payment. Whelpley v. Higly, Brayt. 39 (Overruled).

48. Nor where there was a single charge, for a "spinning jenny." Ames v. Fisher, Brayt. 39. (Overruled, 10 Vt. 201.)

58. In an action on book to recover for services of the plaintiff's minor son whom he had hired out to the defendant for a specified term, at a specified price per month ;--Held, that the plaintiff could recover only for the time of

49. Sale without delivery. An action actual service, whether or not the defendant of book account for goods sold will not lie, wrongfully suffered the minor to leave service, where the sale is not completed by actual de- or turned him off. Hennessy v. Stewart, 31 livery. Read v. Barlow, 1 Aik. 145. S. C., 1 Vt. 486. Vt. 97. 8 Vt. 218. 18 Vt. 499. 36 Vt. 79. 50. Book account will not lie, in such case, except where asumpsit will, for goods sold and delivered, or bargained and sold. There must be such a completed and perfected contract as that the property has passed to the defendant. Hodges v. Fox, 36 Vt. 74. Bundy v. Ayer,

18 Vt. 497. 13 Vt. 580.

59. Intermixture. This action does not lie to recover the value of goods which the plaintiff negligently intermixed with those of the defendant, and which were used by the defendant. Pratt v. Bryant, 20 Vt. 333.

60. Usury. Goods delivered in payment of usurious interest cannot be charged and recovered for in this action. A recovery in such 51. Special assignment. Goods assigned case can be had only in the mode pointed out to be disposed of and converted into money and by the statute. Allen v. Thrall, 10 Vt. 255. the proceeds applied in a particular manner, 61. Money lost. A claim for money lost cannot be recovered for in the action of book account. Allen v. Thrall, 10 Vt. 255.

by the negligence of an employé cannot be recovered of him in an action of book account, 52. Special damages. This action does where he denies his liability and does not connot lie to recover damages for the breach of a sent to its being so adjusted. Chase v. Spencer, special contract. Blanchard v. Butterfield, 27 Vt. 412; and see Drury v. Douglas, 35 Vt. 12 Vt. 451. Smith v. Smith, 14 Vt. 440. Pierce 474. v. Smith, 16 Vt. 166. Bailey v. Bailey, 16 Vt. 656. Scott v. Lance, 21 Vt. 507.

53. Nor can unliquidated damages, claimed by either party, be adjusted in this action, whether arising from a tort, or the breach of a contract, special or implied. Smalley v. Soragen, 30 Vt. 2.

62. due on note. A sum due upon a promissory note cannot be charged and recovered for on book. Stevens v. Damon, 29 Vt. 521.

63. collected by attorney. Without an agreement express or implied to that effect, money collected by an attorney cannot be charged and adjusted in the action of book account. Scott v. Lance, 21 Vt. 507. Farrand v. Gage, 3 Vt. 326.

54. A claim resting in damages for the breach of a special guaranty - as that goods should pass the custom house under a certain tariff--cannot be recovered in the action of book account. Pierce v. Smith, 16 Vt. 166. 55. Nor does it lie upon a collateral agree- v. Packard, 16 Vt. 91. ment. Smith v. Hyde, 19 Vt. 54.

64. Rent. So, as to the use and occupation of land,- -or rent. Ib. Hitchcock v. Smith, Brayt. 39. Case v. Berry, 3 Vt. 332. Nichols

65. Costs of arbitration. The costs and 56. The plaintiff was employed to make expenses of an arbitration, revoked before shoes for the defendant by the pair, the defen-award made, cannot be recovered in an action

of book account, against the party revoking. of book account disconnected with, or rising inBryant v. Clifford, 27 Vt. 664. cidentally out of, the principal subject matter, 66. Articles lent. Tools lent not to be to bring in and settle in the action of book acworn out by use and not damaged, nor a return count the principal subject in controversy. demanded, cannot be recovered for in this ac- Huxley v. Carman, 46 Vt. 462. tion, though not returned. Scott v. Brigham, v. Barnes, 37 Vt. 588. 27 Vt. 561.

IV. JURISDICTION.

Hydeville Co.

67. The plaintiff borrowed the defendant's chain and broke it. Held, that the plaintiff could not, in an action of book account, recover 76. Apparent debtor side of book. The the expense paid for mending the chain. Ib. debtor side of the plaintiff's book, to be deter68. -bailed for sale. A party cannot re-mined by inspection, affords the only rule for cover in this action for items which he could determining the jurisdiction of a justice, in the not recover under the common counts in gen-action of book account. It is not affected by eral assumpsit;-as, for articles bailed for sale an omission to charge what might have been which are not sold, but which the defendant charged, nor by any entries of credit on the demerely refused to deliver on demand. Kidder fendant's book. Stone v. Winslow, 7 Vt. 338. v. Soules, 44 Vt. 303. Beach v. Boynton, 26 Vt. 105.

77. The converse of the proposition must follow, and the county court alone has jurisdiction where the debtor side of the plaintiff's book exceeds $100 [now $200];-certainly where the charges are not either fictitious or made in bad faith. Nichols v. Packard, 16 Vt. 91.

69. Tenants in common, &c. One of two tenants in common of personal property cannot recover of the other, in an action of book account, for having used more than his share of the common property. Albee v. Fairbanks, 10 Vt. 314. McCrillis v. Banks, 19 Vt. 442. 21 Vt. 560. 78. The debit side of the plaintiff's claim, as 70. Where one joint owner or tenant in com- presented, is regarded as his book for the purmon appropriates more than his share, the ex-pose of determining the jurisdiction of the cess cannot be recovered in this action, although court; and the fact that such claim was not so done by consent and under an agreement to upon his book, or was not fully proved, unless account on final settlement. Briggs v. Brews- it was merely fictitious, does not defeat the juter, 23 Vt. 100. Scott v. Lance, 21 Vt. 507. risdiction. Mason v. Potter, 26 Vt. 722. (Changed by Stat. 1852.) 79. If the debtor side of the plaintiff's book 71. Joint action. In a joint action of book exceeds $100 [G. S. $200], the county court account, the defendant cannot be allowed for has original and exclusive jurisdiction, which items due from the plaintiffs severally. Glea-is not affected by the sum ultimately found due son v. Vermont Central R. Co., 25 Vt. 37. the plaintiff. Eddy v. Horton, 27 Vt. 285;--* 72. Waiving tort. In a matter of trespass, nor by the fact that part of the items have been or tort, the plaintiff cannot waive the tort and paid and credited, leaving a balance of a less recover therefor in book account, nor in assump-sum. Reed v. Talford, 10 Vt. 568. Willard v. sit. Peach v. Mills, 14 Vt. 371. McCrillis v. Collamer, 34 Vt. 594. Banks, 19 Vt. 442. Hassam v. Hassam, 22 as presented and claimed. A jusVt. 516. Stearns v. Dillingham, 22 Vt. 624. tice has jurisdiction in an action of book acScott v. Lance, 21 Vt. 507. Drury v. Douglas, count where neither the ad damnum, nor the 35 Vt. 474. plaintiff's account, as presented and claimed, ex73. No part of account due at com-ceeds $100 [G. S. $200], although the debtor mencement of suit. This action cannot be side of the plaintiff's book, in all, may exceed sustained if no part of the plaintiff's account that sum. Fargo v. Remington, 6 Vt. 131. had become due at the commencement of the Stevens v. Damon, 29 Vt. 521. suit, although it had all become due before the audit. Wetherell v. Evarts, 17 Vt. 219. 24 Vt.

42.

80.

81. erroneous statement of. Where a party's account is made to exceed the limit of a justice's jurisdiction by an erroneous mode of stating the account, the jurisdiction is not lost. Temple v. Bradley, 14 Vt. 254.

74. Items of account proper. The Statute of 1852 (G. S. c. 41, s. 18) does not extend to cases where the entire account is a partnership 82. In an action on book appealed from a dealing, and there are no items properly charge-justice, the debtor side of the plaintiff's book, able on book and recoverable in the action of as presented to the auditor, showed a case withbook account. Green v. Chapman, 27 Vt. 236. Duryea v. Whitcomb, 31 Vt. 395.

75. It is foreign from the letter and spirit

of G. S. c.

in the justice's jurisdiction. Held, that the jurisdiction was not defeated by the fact that the auditor adopted such a mode of stating the ac

41, s. 18, to allow a party whose count as to swell the debtor side of the account principal matter of controversy properly belongs beyond the jurisdiction. Mason v. Hutchins, to the action of account, but who has few items 32 Vt. 780.

83.

An article sold with the privilege of re-whenever the want of jurisdiction is discovered. turn, and returned, and both charged and cred- Shepherd v. Beede, 24 Vt. 40. ited on the plaintiff's book, should not be taken into account to bar a justice of his jurisdiction, the suit being brought in good faith. Page v. Morgan, 28 Vt. 565.

90. Ad damnum. An action on book, returnable to the county court, was dismissed on motion, where the balance declared for and the ad damnum were both within the jurisdiction 84. Fictitious entries. The plaintiff in an of a justice. Bates v. Downer, 4 Vt. 178. action of book account cannot bring his case 91. A judgment of the county court in an within the jurisdiction of the county court by original action of book account, where the entering in his account a bill of goods paid for declaration was in common form without any and receipted on delivery, and which was not averment as to the amount of the debtor side charged in account at the time. Nelson v. Em- of the plaintiff's book and the ad damnum was ery, 17 Vt. 579. laid at $100, and where no objection was taken 85. A party cannot give a court jurisdic- to the action, was held not void for want of jution by making figures on paper that he con- risdiction, where it appeared from the account cedes do not represent the amount of the claim made part of the auditor's report, that the debit he holds, or designs to make; nor by changing side of the plaintiff's account exceeded $100. the figures of charges on an original book, cor- Paul v. Burton, 32 Vt. 148. rectly made, to larger figures upon a draft of account, without right. Scott v. McDonough, 39 Vt. 203.

Stating balances.

92. Apparent debtor side of the account not a conclusive test. In an action of book account, the apparent "debtor side of the 86. Book account, plaintiff's book" is not the conclusive test of brought to the county court. The plaintiff's jurisdiction. Thus, where it is made apparwhole account was over $100; but he and the ently to exceed a justice's jurisdiction by items defendant had, from week to week, looked over charged, or posted, by mistake and not claimed, their respective accounts, found balances and (Catlin v. Aiken, 5 Vt. 177. Phelps v. Wood, carried over the balances to the account of the 9 Vt. 399); or so made by the entry of items next week, until they had a final settlement, not properly chargeable on book, or in that and the balance then found due was less than account, and not insisted upon, (Scott v. $100. Held, that although assumpsit might lie Sampson, 28 Vt. 569. Sheldon v. Flynn, 17 upon an implied promise to pay the balance Vt. 238.)-Held, that the justice properly took found due, yet this settlement was not a mer-jurisdiction.

ger of all previous dealings, though it might 93. Where the "debtor side of the plainbe used as evidence to regulate the sum to be tiff's book" was made apparently to exceed a recovered; and that the county court had ju-justice's jurisdiction, by including certain items risdiction. Clark v. Edgell, 26 Vt. 108. which had been settled by the giving of a

87. A balance of book accounts found due note therefor which had been paid, and about* on mutual settlement may be charged over as this there was no dispute, nor misunderstandan item in the new account, and may be re-ing;-Held, that the county court had not covered in the action of book account. In such original jurisdiction. Hodges v. Fox, 36 Vt. case, the previous state of the accounts does not 74. affect the question of jurisdiction. The parties are witnesses to such settlement. Gibson v. Sumner, 6 Vt. 163. Spear v. Peck, 15 Vt. 566. Warren v. Bishop, 22 Vt. 607.

94. Plaintiff's good faith. An action of book account brought in good faith in the county court, the jurisdiction being fairly doubtful, was sustained. Stanley v. Barker, 25 Vt. 507.

88. Disputed award. Where the plaintiff's whole account exceeded $100, but it had 95. In this action the jurisdiction is not left all been awarded upon by an arbitrator, except to the choice of the plaintiff, but depends upon an item of $3.20 omitted, and the validity of the debtor side of his account as an open, subthe award was disputed by the plaintiff ;—Held, sisting, unliquidated account, irrespective of in an action on book, that the county court had credits, payments, or offsets. Hodges v. Fox, jurisdiction, although the award was held valid 36 Vt. 74. and a bar to all the account except such item. Ennos v. Pratt, 26 Vt. 630.

96. Where the statute arbitrarily prescribes the criterion of jurisdiction, as in the action of 89. Increase of the account. In an ac- book account or upon a promissory note, the tion on book brought in the county court, where plaintiff's good faith in bringing his suit in the the debtor side of the plaintiff's book at the particular court has little application to the time of commencing the suit was less than suf- question. Ib. Barrett, J, in Miller v. Livingficient to give original jurisdiction;-Held, that stone, 37 Vt. 468-9. See Reed v. Stockwell, 34 jurisdiction was not conferred by a subsequent Vt. 206.

increase of the account and that the suit must 97. Interest on the account. To the sum be dismissed at any stage of the proceedings demanded in an action of book account, and

found due, the court added interest so as to port was accepted. Booth v. Tousey, 1 Tyl. exceed the sum demanded, and rendered judg- 407.

ment therefor. Held correct. Dickenson v. 106. Under sec. 54 of the judiciary act of Gould, 2 Tyl. 32.

1797 (Slade's Stat. 73), the court could by

98. In an action of book account before a themselves audit the accounts and ascertain justice, the addition of interest to the plain- the sum due in an action of book coming into tiff's account by consent of the parties in ad- court by appeal, where the defendant suffered justing the balances, was held not to affect the a default. Dickenson v. Gould, 2 Tyl. 32. jurisdiction, although if the claim for interest 107. A judge acting as a constituent part of had been presented as part of the debit side of the court cannot appoint himself auditor in a the plaintiff's book, the jurisdiction would have suit; nor can he act both as judge and auditor been exceeded. Stone v. Winslow, 7 Vt. 338. in the same cause. Campbell v. Wilson, 2 Aik. 99. It is optional with the plaintiff whether 118.

to claim interest upon his account or not; and 108. A person whose wife is first cousin to a justice suit will not be dismissed because, by the wife of one of the parties to a suit is disadding interest, the account would exceed the qualified to act as auditor therein. Clapp v. justice's jurisdiction. Paige v. Morgan, 28 Vt. Foster, 34 Vt. 580. 565. Catlin v. Aiken, 5 Vt. 177. Stone v. 109. The expression of an opinion by an Winslow. auditor, before his appointment, upon the facts 100. The county court has original juris- or the merits of the case, unfavorable to one diction of an action of book account, although of the parties, and that unknown to him, may the debit side of the plaintiff's account, as be sufficient cause for setting aside the report, charged, is less than $100, if the interest which on his motion; but not if such opinion be upon was demandable, though not actually charged a mere point of law, since the court reviews when the suit was commenced, would raise the and determines the law. Fay v. Green, 2 Aik. claim above that sum-[now $200]. Blin v. 386.

Pierce, 20 Vt. 25.

V. JUDGMENT TO ACCOUNT.

110. An auditor allowed a claim in a case where he was interested to disallow it. Held, that the party against whom the allowance was made could not object to the report for this cause. Lovell v. Field, 5 Vt. 218.

101. After judgment to account and a report of auditors, the court refused a motion to 111. Special defenses before auditor. arrest judgment, for the reason that the decla- The court early settled the practice, that in the ration was not according to the statute form,-action of book account the defendant might the judgment to account being an admission of omit to plead special matter, and might present unsettled accounts between the parties. Mc-it before the auditors as a defense, in whole or Koy v. Brown, 13 Vt. 593. in part. May v. Brownell, 3 Vt. 463. 18 Vt. 335.

102. The plaintiff has not the right to become non suit, after judgment to account and 112. Where a declaration on book was filed the case has gone before the auditor. Lyon v. in set-off to an action upon a note ;-Held, that Adams, 24 Vt. 268. 30 Vt. 218. 28 Vt. 444. a plea to such declaration, that the items of 103. In the action of book account, the pre- such account were received under an agreement liminary judgment to account is always ren- that their amount was to be allowed on the dered without reference to the actual dealings note, was insufficient. Blackmore v. Page, 2 between the parties, or whether any have ex- Tyl. 110. isted or not. Davis, J, in Hagar v. Stone, 20 113. There is no use in craving oyer, since Vt. 109. It is little more in point of conclu- the party before the auditor is not confined to siveness than an ordinary order of reference. the oyer. Read v. Barlow, 1 Aik. 145. Steele, J, in Smith v. Bradley, 39 Vt. 369. Reed v. Barlow, 1 Aik. 145. Matthews v. Tower, 39 Vt. 438.

104. After a judgment to account, though by default, final judgment in chief may be rendered for the defendant on the report of the auditor. Gordon v. Potter, 17 Vt. 348.

VI. AUDITOR AND AUDIT.

Report

114. In the action of book account, the right to plead in bar is as limited, as the right to defend before the auditor is extended. Steele, J., in Smith v. Bradley, 39 Vt. 369.

115. No defense can be specially pleaded, which depends for its effect upon the plaintiff's account, or puts in issue the plaintiff's account. All such defenses must go before the auditors. Porter v. Smith, 20 Vt. 344. Matthews v. Tower, 89 Vt. 433.

105. Competency and powers. 116. A plea which puts in issue facts to by two auditors of the three appointed. Upon which the parties may testify before the auditproof to the court, that the hearing was had by ors, is bad. Delaware v. Staunton, 8 Vt. 48. the two only by consent of the parties, the re- Hall v. Downs, Brayt. 168; and the law is the