An action was brought by the plaintiffs below, the nature of which will appear from the reporter’s statement. It was filed before the pleading act of 1893, and therefore, in deciding the case, that act was not considered.
It is by no means an easy matter to define in precise and accurate terms what constitutes an action upon an “open account.” An attempt to do so is not necessary in the present case, for we can, without serious difficulty, safely assert that the action with which we are now dealing is not one of this character, which is sufficient for the purpose in hand. The action was really one of assumpsit for money had and received by the defendants to the plaintiffs’ use and not properly accounted for and paid over on demand. This, we think, will appear from a casual inspection of the plaintiffs’ declaration.
It follows that the court erred in allowing the plaintiffs to take a verdict without submitting evidence, and rightly corrected that error by setting aside the verdict and reinstating the case, upon a motion for this purpose duly filed by the defendants during the same term at which the verdict was rendered. Judgment affirmed.