
    Thomas Clark v. Levi A. Edgell.
    
      Book Account. Jurisdiction.
    
    Where the plaintiff’s account was over one hundred dollars, but he and the defendant had looked over the account, at the end of every week, and the balance was carried on to the account of the next week, and so from week to week, until the parties had a final settlement or looking over, and found the balance due plaintiff to be $97,00; the plaintiff called upon the defendant to pay this sum; he neglecting to pay it, the plaintiff brought the present suit, insisting that the whole account between himself and defendant was an open book account; upon this state of facts it was held, that the settlement was not a merger of all the previous dealings between the parties, and that the county court had jurisdiction of the suit.
    It was also held, that though assumpsit may lie upon an implied promise to pay the balance found due; yet that does not preclude the general action of assumpsit for goods sold and delivered, and the settlement might be used as evidence to regulate the sum to be recovered.
    Book Account. Judgment to account was rendered in tbe county court, and an auditor was appointed. It appeared from the auditor’s report, that the plaintiff was a shoemaker by trade, and that he worked for the defendant by the piece or pair, and while he so worked, as a general practice, he and the defendant were in the habit- of looking over their accounts at the end of each week, and finding the balance; and such balance, whether in favor of the plaintiff or defendant, was carried on to the account of the next week; and that this was done from week to week, until the parties had a final settlement, and the balance due the plaintiff was found by the parties to be $97,00. That plaintiff called upon the defendant for payment of the same; but defendant neglecting to pay, the plaintiff brought the present suit. The account was kept on the book of the plaintiff, and the defendant .made the balances, as above stated, in the presence of the plaintiff, but there was no settlement signed by the parties, as such, upon the book. The plaintiff insisted that this account between himself and defendant was an open book account, and so presented his account before the auditor ; and the account, so presented, exceeded one hundred dollars.
    After the filing of the auditor’s report, the defendant moved to dismiss the cause for want of jurisdiction; claiming — 1. That the debit side of plaintiff’s book at the commencement of the action, did not exceed $100. 2. That the amount due to the plaintiff from the defendant, at tbe commencement of this suit, could not be recovered in an action on book account.
    The county court, March Term, 1853, — Peck, J., presiding,— overruled the motion to dismiss, and rendered judgment for plaintiff, on the report. .
    Exceptions by defendant.
    
      Wires Sr Peck for defendant.
    
      Underwood fy Hard for plaintiff.
   The opinion of the court was delivered by

Bennett, J.

The only question in this case is one of jurisdiction. It is said that the settlement was a merger of all previous dealings; and in legal effect blotted them out. But we think it had no such effect. Though assumpsit may lie upon an implied promise to pay the balance found due; yet that does not preclude the general action of assumpsit for goods sold and delivered, and the settlement might be used as evidence to regulate the sum to be recovered.

Under the decisions in this- state, it is evident the county court had original jurisdiction. The judgment below is affirmed with costs.  