Vermont Mutual Fire Insurance v. Cummings

The opinion of the court was delivered by Redfield, J. The plea in abatement was correctly overruled'by the court below. The clerk of the court, in signing a writ, whether of mesne or final process, is the mere instrument of the court. It has been long settled by reported decisions, acquiesced in in the subordinate tribunals of the state, and by a constant practice since the organization of our [508] COurts, that the clerk may sign even his own writs. The question now before the court was virtually decided in Graham v. Todd, 9 Vt. R. 166. The question whether a corporation can maintain the actjon 0£ po0p account is not one with which the court have found much difficulty. Were the subject new it might merit a different consideration. But for a long time it has been the constant practice to sustain in our courts actions of book account, both in favor of and against corporations of almost every character, public and private. In a science consisting of precedents, so long and uniform a course of practice, although, in some sense, sub silentio, is of very great weight in determining a question of this nature. The case of Bradley v. Richmond, 6 Vt. R. 121, which is relied upon by the defendant, is not a case resting upon any such obvious principle of policy as would be likely to induce the court to extend it to others, but remotely analogous to it. The present case is not similar to that case. The fact that the plaintiffs cannot testify is no good reason why they should not be allowed to keep a book and to call upon the defendant as a witness to prove its correctness. Whether moneys received by the defendant, as agent of the company, can be recovered in this form of action, depends upon the facts in the case. It is evident the defendant was not a mere depositary of the money. Upon the receipt of it, the defendant became debtor to the company, and there would seem to be no good reason why the money might not as well be recovered in this form of action as money received in any other mode. It is very clear that an action of account will lie in the present case. Scott v. McIntosh, 2 Camp. R. 238. In that case the plaintiff was nonsuited on account of the difficulty of adjusting such complicated dealings in a trial by jury. The action was assumpsit, and the claim was for brokerage and commissions. Lord Ellenborough says, this is not the appropriate tribunal for investigating complicated mutual demands. The plaintiff should have brought an action of account. In a subsequent case, Tomkins et al. v. Wiltshire, 5 Taunt. R. 431, decided in 1814, it was held that assumpsit will lie for the balance of an account. It is said in Fitzherbert’s Natura Brevium, 270, 6, “that if a man sue an action of debt upon arrearages of account, [509] before auditors, and hath the party arrested, that he shall have a writ out of the chancery unto the sheriff to keep him in prison until he hath paid those arrearages.” Hence, the author concludes, if he is to be detained in prison till he do answer the action of debt, that he is bound to answer, and the action will well .lie. Hence, it may be further inferred, that, notwithstanding the case of Scott v. McIntosh and Topham v. Bradick, 1 Taunt.R. 572, where it was considered that a special demand and refusal to account might be necessary to lay the foundation of an action of debt or assumpsit for the balance of an account,-it is now well settled that such action will lie, as well, and upon the same proof, as an action of account. Our action of book account is strictly in debt to recover the balance or a'rrears of the account between the parties, so that the principle of the action, whatever may have been its origin, is found deeply laid among the ancient foundations. If so, book account will lie in this case. From the very nature of this transaction and the course of the company’s dealing, with their agents, it must have been expected that the defendant would become debtor to the company for all their moneys which he consented to receive from persons insured by the plaintiffs through the defendant’s agency. Such was, it seems, their practice with all their agents. From the nature of the business, it could not have been otherwise, and if we supposed the defendant aware of the nature of the business he entered upon, and the necessary course of its fulfilment, we must consider him as consenting to this arrangement. This, it is evident, he did do. He is, therefore, liable in this form of action. The fanciful notion which some have entertained, that money alone could not be recovered in this form of action, has never been considered as law in this state. If such a principle ever obtained any where, it must have been at a time when the course of business was different from what it is at present. Judgment affirmed.