The opinion of the court was delivered by
Bennett, J.The defendant relies only upon two exceptions, which need only be considered.
It is said the action of book debt will not lie to recover a balance found due on settlement. The auditor reports that the parties settled their accounts, and agreed upon the balance due, and it was charged over, in a new account.
Though assumpsit upon an account stated, is the ordinary action brought, to recover a balance found due on settlement, yet it is not uncommon to charge such balance as an item in a new account. The case of Gibson v. Sumner, 6 Vt. R. 163, is an authority to show, that, in a case in which the settlement is not impeached, the balance found due may be recovered as an item in the account, in the book action.
It is said, that, as it appears that the plaintiff’s account, when settled, was over one hundred dollars, the county court had no appellate jurisdiction.
There was no attempt in this case to impeach the settlement; and the case of Gibson v. Sumner is an authority to show, that when the balance found due, on settlement, and charged to a new account, and the other items, together, do not exceed one hundred dollars, a justice of the peace has jurisdiction, though the items settled, and the other items, added together, may exceed that sum.
In such case, the county court would, of course, have appellate jurisdiction.
The motion to dismiss, was properly overruled.
The judgment of the county court is affirmed.