Porter v. Smith
Supreme Court of Vermont
Book Account. The plaintiffs declared against the defendants as partners. The defendants pleaded, that they ought not to account, because they were never partners; and the defendant Ford pleaded, severally, his discharge in bankruptcy. The plaintiffs demurred to both pleas. The county court, November Term, 1845, — Redfield, J., presiding, — decided, pro forma, that the first plea was sufficient, and rendered judgment for the defendants. Exceptions by plaintiffs.
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Book Account. The plaintiffs declared against the defendants as partners. The defendants pleaded, that they ought not to account, because they were never partners; and the defendant Ford pleaded, severally, his discharge in bankruptcy. The plaintiffs demurred to both pleas. The county court, November Term, 1845, — Redfield, J., presiding, — decided, pro forma, that the first plea was sufficient, and rendered judgment for the defendants. Exceptions by plaintiffs. The demurrer is well taken. If the plea puts in issue a fact, to which the parties may testify, it is bad. Delaware v. Staunton, 8…
1Opinion of the Court
The opinion of the court was delivered by
Redfield, J.
It has long been settled, that, in the action of book account, no defence can be specially pleaded, which depends, for its effect, upon the plaintiff’s account. All such defences must go before the auditors. All pleas in court must go to the declarartion. This plea, indeed, professes that. But, in the opinion of the court, it addresses itself to a matter, which the plaintiff was not bound to prove strictly as alleged. The fact of there being, in some form, a joint liability is, indeed, of the essence of the recovery, and is therefore the…
2Cases cited2 opinions
- Bishop v. BaldwinSupreme Court of Vermont · 1842
- Delaware v. StauntonSupreme Court of Vermont · 1836
3Cited by5 opinions
- Bass v. RubleeSupreme Court of Vermont · 1904
- New York Central Railroad v. ClarkSupreme Court of Vermont · 1918
- Matthews v. TowerSupreme Court of Vermont · 1867
- Smith v. BradleySupreme Court of Vermont · 1867
- Wires & Peck v. FarrSupreme Court of Vermont · 1852