Maples v. Avery

Bristol, J. As much certainty is necessary, in remonstrances against the award of auditors, as in pleading. In the remonstrance made to this award, it was incumbent on the defendant, with reasonable certainty, to shew some good cause for setting aside the award. This he has attempted; but in my opinion, he has failed of bringing before the court the facts on which he intended to rely. The remonstrance states two facts as grounds of objection to the award: 1st, That the auditors found the plaintiff’s account against the defendant, was more than the defendant’s account against the plaintiff and that the difference exceeded 20 dollars : 2ndly, That more of the plaintiff’s account was not barred by the statute of limitations, than the difference between the plaintiff’s and the defendant’s account, viz. the sum of 28 dollars. From these facts the pleader infers, that the auditors committed an error, and that the award should be set aside. The obvious defect in this remonstrance, is, that no fact of any importance is stated,-nothing which shews that any erroneous decision was made by the auditors. By the expression, “ the auditors found, that the plaintiff’s account was more than the defendant’s,” can be understood nothing more than that the claim made by the plaintiff as exhibited in his account, was larger than that made by the defendant. It is not stated, that the auditors found the amount of the account justly due, but rejected it because it was outlawed. Finding that one account was larger than the other, is not finding that either of them was just, or [24] that either of them was even due. If the plaintiff had no just debt, it is of no importance whether more or less of his account had been barred by the statute of limitations. Tne answer to the remonstrance shews, that no recovery by the plaintiff ought to be had. The account for which the plaintiff sought a recovery, consisted of charges for liquor sold by the glass to the defendant, and drunk in the plaintiff’s tavern. The plaintiff claims, that the 17th section of the statute in force during the account, was a mere act of limitations, and that after the expiration of the two days allowed for bringing an action, it is still a just debt, and to be governed by the same rules as apply to all other debts, where the statute of limitations has run. On the other hand, in the opinion of the Court, the object of the legislature was a qualified or conditional prohibition of suits founded on tavern charges of this kind, by compelling them to be brought within two days after the credit was given, if brought at all, and prohibiting their being brought afterwards, not for the purpose of protecting men against stale demands, but to discourage the sale of spiritous liquors, on credit. From May, 1712, to 1750, the bringing of actions for drink sold by tavern-keepers, was prohibited. To this prohibition was then added a proviso in these words, “ unless the same be brought within two days after such sale and drinking.” This merely modifies the former prohibition; and after the lapse of the two days without suit, the prohibition is as absolute as it was before, and for the same reasons. To consider this as an ordinary statute of limitations, liable to be avoided by a new promise of the defendant, would be doing away all the benefits intended from the provision, and would be contrary to the whole spirit of the act regulating taverns. The other Judges were of the same opinion. Judgment affirmed.