The opinion of the court was delivered by
Williams, Ch. J.The exceptions taken to the report of the auditor, have been waived, and the defendant relies solely on the motion in arrest for the insufficiency of the declaration. The declaration, instead of being in the form prescribed by the statute, in actions on book before the county court, appears to be the one originally used before the justice. When the cause came by appeal before the county court, the plaintiff should have filed a new declaration, in the form given in the statute. But we think the defects in this declaration, although they would have been fatal, on special demurrer, are cured by the judgment to account, given by the defendants. In the action on book, there is no general issue, which denies the whole declaration. The plaintiff may, in fact, be in arrear and in debt to the defendants, and still this would constitute no objection to sustaining the action, until this was ascertained by the auditor. The only facts which must exist to maintain the action, are, that there is an unsettled account between the parties.
*595A judgment to account is an admission of an unsettled account, or that there are dealings between the parties to be adjusted by an auditor.
After a judgment or confession to account, and a report of auditors, and acceptance of the report, a motion in arrest cannot'be sustained because there is no allegation in the declaration of a fact, which, by such judgment, is supposed to exist.
The declaration, in this case, is, in substance, declaring for the sum of one hundred dollars to balance book accounts between the parties, and contains all the material parts of a proper declaration before the county court, and the judgment to account is an admission of an unsettled account between the parties.
The judgment'of the county court is affirmed.