Whipple v. Whipple

Supreme Court of Rhode Island

Whipple v. Whipple

13 R.I. 534, 1882 R.I. LEXIS 34

DecidedJanuary 28, 1882

StatusPublished

This text of 13 R.I. 534 (Whipple v. Whipple) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Whipple v. Whipple, 13 R.I. 534, 1882 R.I. LEXIS 34 (R.I. 1882).

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Opinion

Durfee, C. J.

This is an action of account in which, after judgment quod computet, an auditor was’ appointed, who stated the account and made report thereof, to which the defendant filed exceptions. The case comes before us on motion of the plaintiff to dismiss the exceptions. The motion must be granted. In a proceeding before an auditor in such an action, the correct practice is, where questions arise which the parties are unwilling to trust to his decision, to make up issues thereon, for the court if the question be one of law, and for the *535 jury if of fact, tbe auditor meanwhile waiting for the decision, and conforming the account to it when received. Exceptions taken to an account reported by an auditor, after the same has been returned, except for errors apparent on its face, are irregular and of no effect. Crousillat v. McCall, 5 Binney, 432; Willson v. Willson, 5 N. J. Law, 791; Closson v. Means, 40 Me. 337; Blade v. Nichols, 68 Me. 227; and see McMurray v. Rawson, 3 Hill N. Y. 59. The remedy by action of account is an antiquated remedy, intricate and cumbersome in its processes, and can seldom be resorted to with advantage where the accounting is likely to involve contested matters, a suit in equity being much more simple and easily managed. Motion granted.

James Tillinghast Sf Charles A. Wilson, for plaintiff. Ahraham Payne James C. Collins, for defendant.

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Durfee, C. J.

This is an action of account in which, after judgment quod computet, an auditor was’ appointed, who stated the account and made report thereof, to which the defendant filed exceptions. The case comes before us on motion of the plaintiff to dismiss the exceptions. The motion must be granted. In a proceeding before an auditor in such an action, the correct practice is, where questions arise which the parties are unwilling to trust to his decision, to make up issues thereon, for the court if the question be one of law, and for the *535 jury if of fact, tbe auditor meanwhile waiting for the decision, and conforming the account to it when received. Exceptions taken to an account reported by an auditor, after the same has been returned, except for errors apparent on its face, are irregular and of no effect. Crousillat v. McCall, 5 Binney, 432; Willson v. Willson, 5 N. J. Law, 791; Closson v. Means, 40 Me. 337; Blade v. Nichols, 68 Me. 227; and see McMurray v. Rawson, 3 Hill N. Y. 59. The remedy by action of account is an antiquated remedy, intricate and cumbersome in its processes, and can seldom be resorted to with advantage where the accounting is likely to involve contested matters, a suit in equity being much more simple and easily managed. Motion granted.

James Tillinghast Sf Charles A. Wilson, for plaintiff. Ahraham Payne James C. Collins, for defendant.

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13 R.I. 534, 1882 R.I. LEXIS 34, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whipple-v-whipple-ri-1882.

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