Boutwell v. Tyler

The opinion of the court was delivered by Williams, Ch. J. In this case the auditor has reported a balance in favor of the defendant. The plaintiff excepted, and the only question to which our attention has been called, is, whether the charge of fifty five dollars, specified in the receipt, was a proper subject of charge on book. It appears evident, from the terms of the receipt, that the money was received to be accounted for, and that there were mutual dealings between the parties. It was, therefore, a proper subject to be examined and adjusted when the accounts of the parties were adjusted and audited, and it cannot cease to be a proper subject of accounting because the party has, in addition to the ordinary evidence, the further evidence arising out of the receipt. The objection is, that 489 the party is entitled to his oath in the action on book, and whenever this objection is urged it seems to be supposed that the party will swear falsely, but as the other party may also be examined on oath, he must swear to the truth, and, generally, in investigations of this kind,"truth will prevail over falsehood. Something was said in the argument about the charge being for money lent. The receipt is general, for money received to account for. If it was a payment of money lent, the 'fact should have been proved to the auditor and the charge could not have been allowed, but nothing is stated in the report which shows that this sum ought not to have been allowed. It was a proper charge, and both or either of the parties were competent to testify, or introduce evidence to . show, whether it ought or ought not to be allowed, and the auditor was to determine the fact. The judgment of the county court mustf therefore, be affirmed.