The opinion of the court was delivered by
Redfield, J.It has long been settled, that, in the action of book account, no defence can be specially pleaded, which depends, for its effect, upon the plaintiff’s account. All such defences must go before the auditors. All pleas in court must go to the declarartion. This plea, indeed, professes that. But, in the opinion of the court, it addresses itself to a matter, which the plaintiff was not bound to prove strictly as alleged. The fact of there being, in some form, a joint liability is, indeed, of the essence of the recovery, and is therefore the main inquiry to be had before the auditors, and cannot be taken from them, without putting the whole case to the jury. But whether the joint liability resulted from a general or special partnership, or from a partnership in the particular transaction, was not necessary to be alleged, or proved, even if alleged, and of course could not form the point of a plea in bar. The cases of Delaware v. Staunton, 8 Vt. 48, and Bishop v. Baldwin, 14 Vt. 145, show fully the view of this court in regard to the subject, and the proper distinction between this and the action of account.
The judgment of the county court is reversed, and the case will he finished in this court, unless the state of the pleadings requires a jury trial, — in which case it will be remanded for that purpose. According to our present practice, a case once brought into this court from the county court is never remanded, unless some issue to the jury stand closed upon the record, which is to be tried, before the case can be farther proceeded with.