Two questions are raised: 1. Whether the plea is good in form and substance. 2. Whether it is supported by the answer.
On hearing this case, 1 was inclined to the opinion that the plea was substantially, though not formally correct, and that it should be allowed. Further examination has satisfied me that at least oue of the exceptions urged by the complainant’s counsel is well taken. The plea is drawn, apparently, without attention to the most approved precedents. Such is the peculiar nature of this kind of pleading in equity, that a court should always be careful to see that it sets forth plainly and explicitly every matter necessary to constitute a complete defence and bar to the complainant’s claim. For if the plea be allowed by the court as correctly pleaded, and is afterwards proved, the cause is at an end. The allowance of a plea, says Ld. Rcdesdale, is as complete a judgment. against the claims of the plaintiff, as can be given on the most solemn and deliberate hearing of the cause on the pleadings and proofs, provided the truth of the plea be established by evidence : 2 Scho. and Lef. 725, Roche v. Morgell.
The exception, that the plea does not sufficiently allege that the account stated between the parties was in relation to the claims of the plaintiff as a legatee under the will of Elizabeth Butler, deceased, is not sustainable. The plea alleges that the account stated was “between this defendant, as executor of the said Elizabeth Butler, deceased, and the complainant, as one of the legatees or persons entitled under the said will of Elizabeth *203Butler, deceased; and upon that account there was a balance,” &c. This is deemed to be sufficiently certain.
Another exception, that the plea does not allege the vouchers to have been delivered up on the settlement, is too fastidious. Where such delivery up has in fact taken place, the averment may very properly be made in a pica of this nature; yet such an averment is not necessary, and for the plain reason, that the delivery up of vouchers on the settlement of an account is not held to be essential: Mitf. 211; Coop. Eq. 280 ; Willis v. Jernegan, 2 Atk. 250; Wharton v. May, 5 Ves. 27: Beam. P. E. 230, 231.
Nor is it required, when the bill is for an account, (bat the plea should set out the account. This is the proper course when the account is impeached by the bill: Mitf. 211; Coop. 279; Beam's Pleas, 230.
But the principal objection to the plea is, that it does not state that the complainant and defendant made up, stated and settled an account in writing ; and that the com plain ant, after examination, approved of said account. These allegations are to be found in all the precedents, and appear to me important. The plea states, that on the day therein mentioned, ‘-'an account in writing was made out and stated between this defendant, as executor of the said Elizabeth Butler, deceased, and the complainant, as one of the legatees or persons entitled under the said will of said Elizabeth Butler, deceased ; and upon that account there was a balance still due the complainant of thirteen dollars and six cents, which balance was then and there paid,” &c. It further states that the complainant gave a receipt, which she read herself or the same was truly read to her by the defendant; that she was fully satisfied -with the receipt, and voluntarily signed it, &c. Now all this may be true, and yet the complainant may not have been present when the account was made out and stated, and may never have seen or examined it. In these particulars, I consider the plea faulty. When all the allegations of the plea, being taken as true, do not make out a full defence, the plea cannot be sustained. These matters appear to me material, and I cannot feel at liberty to allow a plea in which there are such important omissions, or from which necessary facts are to be gathered from inference alone.
*204But I am not disposed, even on these grounds, to overrule the plea. I feel bound to believe that these omissions are accidental anti not intentional,, and that they can readily be supplied ; and, under this impression, I shall do as was done by Ld. Eldon, in Bayley v. Adams, 6 Ves. 586; and by Ch. Kent, in Allen v. Randolph, 4 J. C. R. 697; allow the defendant to amend his plea in these particulars, if he shall request so to do. The amendment is to be made in twenty days, and a copy furnished the plaintiffs solicitor, free from expense; and in default thereof, the plea is ordered to stand for an answer, with leave to the complainant to except to it.
On the second question, I am of opinion that the answer is decidedly in support of the plea, though not stated so to be. This formal omission may be supplied if the plea is amended.