
    Charles W. White vs. Marilla Eddy.
    Tlie only riglit to claim a jury trial in an action of account in a district court is on the entry of tlie writ on the question whether the defendant shall account, or from the interlocutory decision. Judiciary Act, cap. 17, § 7.
    Where in an action of account the auditor appointed to state the account has filed his report the only remedy which a party dissatisfied with the report has is to except to it for errors apparent on its face.
    Although a district court erroneously enters judgment in conformity to an auditor’s report at a stage in the case when the court should merely have noted its decision, such error is not ground for a new trial if there were no errors apparent on the face of the report, since the same judgment must necessarily have been rendered at a subsequent date.
    Under the Judiciary Act, cap. 17, § 3, a defendant in an action in a district court who wishes to avail himself of the defence of the statute of limitations must plead it specially; and in the absence of such a plea to an action of account, the auditor must take the account for the period prior as well as subsequent to the six years next preceding the bringing of the action.
    Defendant’s petition for a new trial.
    
      May 4, 1895.
   Per Curiam.

This -is an action of account brought in the District Court of the Sixth Judicial District. After the interlocutory judgment that the defendant account had been entered, an auditor was appointed to state the account. The auditor filed his report January.5, 1895. On January 10, 1895, the court rendered judgment for the plaintiff in conformity to the report for $287.57 and costs, including $25 for the auditor’s fee. The defendant on April 11, 1895, filed her petition for a new trial, alleging that the court erred in entering the judgment instead of noting its conclusions of law and fact or decision, thereby depriving her of the right to claim a jury trial or to take exceptions to the report.

We think that the court erred in entering its judgment on January 10, 1895, instead of noting its decision. Lavelle v. Kimball, 18 R. I. 786. But we do not see that the error worked any injury to the defendant, since the same judgment must, necessarily, have been entered at a subsequent date. The only right the defendant has to claim a jury trial in an action of account in the district court is on the entry of the writ, on the question whether the defendant shall account, or upon the decision to account. Judiciary Act. cap. 17, § 7. The procedure in such an action after the judgment to account is stated in Whipple v. Whipple, 13 R. I. 531, by which it appears that when in the 'taking of the account questions arise which the parties áre unwilling to trust to the decision of the auditor, the correct practice is to have issues made up, for the court if the question be one of law, for the jury if the question be one of fact; the auditor meanwhile waiting for the decision and conforming the report to it when received: and that when the account reported by the auditor has been filed, no exceptions will lie to it except for errors apparent on its face. ■ This being so, it was too late for the defendant even if the district court had merely noted its decision instead of rendering judgment to have claimed a jury trial. Her only remedy at that stage of the proceedings was to except to the report for errors apparent on its face. Unless such errors appeared, judgment must have been entered, necessarily, on the report.

The petition alleges that the report is erroneous on its face because it charges the defendant with the rents and profits of the estate from October 19, 1883, to December 19, 1891, contrary to the statute of limitations by which, as the defendant claims, the accounting should have been limited to the six years next preceding the bringing of the suit, to wit, six years from April 27, 1888. The record, however, does not show that the statute of limitations was pleaded as required by the Judiciary Act, cap. 17, § 3, if the defendant wished to avail herself of the defence of the statute. In the absence of such a plea, the auditor had no alternative but to take the account for the entire period prior as well as subsequent to the six years next preceding the bringing of the suit. His account so taken is not erroneous.

Henry J. Dubois, for plaintiff.

George A. Jepherson, for defendant.

The petition also alleges that the report is erroneous because it charges the defendant with rent for the portion of the estate occupied by her, such portion being less than the share of said defendant as a cotenant with the plaintiff in the estate. The plaintiff’s interest in the estate, as was agreed, is one sixteenth. The defendant had received the entire rents and profits of the estate. The auditor, having ascertained the gross rents and profits so received and deducted the sums properly allowable to the defendant for taxes, insurance, repairs, &c., allowed one sixteenth of the sum remaining to the plaintiff. There is nothing on the face of the report to indicate any unfairness toward the defendant or that the amount reported in favor of the plaintiff is any greater than he is entitled to receive.

Petition denied and dismissed. 
      
       As follows:
      Sec 3. The entry of appearance by tlie defendant in any case in a district court, shall be equivalent to filing tire plea’ of the general issue; and if said case be tried in the district court, the defendant shall, on or before the day one week after the return-day, concisely plead any special defences of law'or fact which ho may desire to plead. If no special defences be pleaded, the defendant shall be restricted to such matters as may be shown under the general issue, or its equivalent.
     