Danels v. Taggart's Adm'r , 1 G. & J. 311 ( 1829 )

Dorsey J.

delivered the opinion of the court—To the plea of an account stated, filed by the appellant, various causes of demurrer, both general and special, were assigned by the appellee; and upon hearing, the plea was overruled by the Chancellor. To test the correctness of that decision the present appeal hath been prosecuted.

A preliminary question, however, presents itself for the consideration of this court, viz: is the decree or order, passed by the Chancellor in this case, of such a character, as to vest in the appellant an immediate right of appeal. That it does not, we think manifest, on reference to the principles established in the cases of Snowden et al. vs. Dorsey et al. 6 Harr. and Johns. 114, and Thompson vs. M'Kim, 6 Harr. and Johns. 302, and Williamson vs. Carnan et al. 1 Gill and Johns. 184, and Hagthorp et al. vs. Neale, Adm'r of Hook, 1 Gill and Johns. 270. It decides a mere question of pleading: it settles no right between the parties. “If the plea is overruled, the defendant may insist on the same matter by way of answer.” Mitf. Plead. 248. The only conclusive effect of the decision then is, that it drives the party to the necessity of asserting the same defence in a different form of proceeding; the consequence of which is, that he is subjected to the expense of producing his testimony to substantiate the allegations, relied on as his discharge. The same expenditure, he must have incurred,had issue been taken on the plea; and for this expenditure, in contemplation of law, he is indemnified by way of costs, if successful on the trial. It is not a decretal order, which in the language of the court, in Thompson vs. JVPKim, “ decides and settles the question of right between the parties,” or, in that of Williamson vs. Carnan et al. which “ so materially affects the rights and interest of the party, as to bring the case within the principle of Thompson vs. M!-Kim-f but it is simply a decision, on a question of pleading, which leaves the whole matter in controversy open for future adjudication.

Waiving, however, the objection to the regularity of the appeal; the overruling of the plea meets our entire concurrence. It is wanting in form and defective in substance: it contains not even the common conclusion, repeating the matters relied on in bar of the. suit and praying judgment of the court, whether the defendant ought to'be compelled to make any further or other answer to the bill. The plea states, in bar of the relief and discovery prayed for, “ that the defendant finally settled and adjusted with John C. King, executor of the estate of Henry Taggart, deceased, after the death of said Taggart, an account in writing; and by said account, the balance, in writing due to this defendant by the estate of said Henry Taggart, on the 25th day of October, in the year 1823, ,was admitted to be $38,341 16|.” The particular time or place, when the alleged settlement took place, is not stated, and, for aught that is contained in the plea, it might have beem made in the State of Maryland, after the granting of letters of administration to the appellee, and even after the commencement of this suit. But suppose it be conceded, that the time of accounting was on the 25th of October, 1823, will this cure all objection to the plea as regards time ? unquestionably not. The bill charges the defendant with having collected (but says not when) after the death of Henry Taggart, a large amount, or the whole of the debts, due to the firm of Henry Taggart Sf Co. amounting to $52,383 33; with having applied part of the personal property of Henry Taggart, enumerated in exhibits D and E, as of the value of $3260, to the payment of Henry Taggart &f Co’s debts; but says, not at what time the application was made. The bill also charge's that Henry Taggart, at his death, was sole owner of schooners Centillo, Daphne and Cleopatra, and one third of schooner Leano, and held a large interest in the Brig El Presidente. That all of said vessels were taken possession of and sold for the sum of §16,800; and the proceeds of sale applied to the defendants own use: but when the sales were made, and the proceeds received is not stated. That the Brig Jlquila, owned by Henry Taggart, on her cruise between February and October, 1823, made many prizes, which were condemned and sold ; and tlie proceeds, amounting to upwards of $10,000, received by the defendants and applied to their own use, but when received is not alleged. That in a subsequent cruise she made captures, the proceeds of which were received by Danels, and amounted to upwards of $30,000; and subsequently made prizes of great value, which-were received in like manner. That Henry Taggart, at his- death, owned one hal f of the Brig El Vencedor, the earnings of which, received by the defendant, Danels, had been $64,000, but when received does not appear. That individual debts, due Henry Taggart, at his death were collected by the defendants, and appropriated to their own use, to the amount of $57,440; of the time of receipt nothing is said. Admitting then, what the plea does not distinctly aver, (but what is indispensable to its validity) the time when the account was stated, the Chancellor could not have done otherwise than overrule the plea. It covers not the case set forth in the bill: every word of it may be true, and yet according to the allegations of the complainant, the defendant may have received, subsequently to the time of adjusting the account stated, and be now bound to account for, all the items hereinbefore enumerated, amounting to the sum of $234,483 33. It is therefore no bar to the discovery and relief sought for. The plea, of an account stated, to such a bill as the present, cannot be sustained unless it be supported by an answer denying the receipt of any part of the money for which he is called upon to account, subsequently to the time when the account stated was adjusted. But relieved from this objection the plea is yet void for uncertainty. It alleges that the defendant Danels, settled and adjusted with John C. King, executor of Henry Taggart, “an account in writing;” but what transactions it embraced : whether it related to all or any of the subject matters, now in controversy, we are furnished not with even the means of conjecture. For aught that appears it may have been an account settled between the parties of the partnership concerns of Taggart and Danels, anterior to the admission of John C. King into the firm; or it may have been a settlement of transactions wholly unconnected with all or any of the claims of which the defendants are now called on to answer. Upon such a plea the plaintiff could not have taken issue. By doing so he would have admitted the sufficiency of the plea as a bar, if the facts which it asserted were established by proof. And if on such an issue the account stated had been proved,-although it might relate to matters wholly foreign to those now in controversy, the bar would have been complete and the bill must have been dismissed. >

“ In pleading, (says Mitf. Plead. 237,) there must be the same strictness in equity, as at law ; at least in matter of substance.” “ A plea must follow the bill and not evade it.” Mitf Plead. 237; “All the facts necessary to render.the plea a complete equitable bar to the case made by the bill, so far as the plea extends, that the plaintiff may take issue upon it, must be clearly and distinctly averred.” Mitf. Plead. 240. The same doctrine is found in Harr. Ch. 229, and Cooper’s Plead. 228. Apply these principles to the plea before us, and all doubt of its insufficiency must instantly vanish. Its defects are equally obvious, by comparing it with the precedent of a plea, of an account stated to'be found in Harr. Ch. 618.

The plea, professes to be a bar to all the relief and discovery called for by the bill, a part of which refers to specific property of the late Henry Taggart, now in the possession and user of the defendant Dañéis, to such part of the complainant’s prayer, the plea of an account stated, cannot be urged as a bar.

Appeal dismissed with costs.