
    Maples against Avery :
    IN ERROR.
    In a remonstrance against an award of auditors, it is necessary to state, with reasonable certainty, a good cause for setting aside the award.
    Therefore, where a remonstrance against an award of auditors, in an action of book debt, stated, "that the auditors found, that the plaintiff's account against the defendant was more than the defendant's account against the plaintiff, and that more of the plaintiff's account was not barred by the statute of limitations than the difference between the plaintiff's and the defendant's account ;" it was held, that such remonstrance was insufficient, as it did not shew, with the requisite certainty, that the plaintiff had any just debt against the defendant.
    The 17th section of the statute tit. 158. c. 1. ed. 1808. is not to be regarded as a mere act of limitation, having for its object the protection of men against state demands, and operating upon the remedy only, without destroying the debt, but as an act of prohibition, qualified with respect to time, but otherwise absolute. Consequently, after the expiration of the time limited without suit, charges embraced by the statute do not constitute a debt, capable of being applied or set off against the charges of the adverse party, in the liquidation of mutual accounts. of the adverse party in the liquidation of mutual accounts.
    
      New-London,
    July, 1825.
    An action of book debt being brought by Maples, against ave-ry, in the county court, the accounts of the parties respectively were referred to auditors for adjustment, who, after a full investigation, found and reported, that the defendant owed the plaintiff nothing by book.
    Against the acceptance of this report the plaintiff remonstrated, alleging, that there were mutual accounts between the parties of more than twelve years standing, and that the auditors, in making up their report, decided against a plain principle of law. The plaintiff then averred, 1st, that the auditors, after having liquidated and adjusted the accounts of the plaintiff and defendant, found, that the plaintiff’s account against the defendant was more than the defendant’s account against the plaintiff; and that the difference in favour of the plaintiff in said accounts was more than 20 dollars ; 2ndly, that the auditors found, that more of the plaintiff’s account was not barred by any statute of limitations, than the difference between his account and the account of the defendant, viz. the sum of 28 dollars.
    To this remonstance the defendant replied, that aside from the sum of 13l. 11s. 1-2d. there was a balance in his favour of 7l. 7s. 11 1-2d.; and as to the former sum, the plaintiff was, during the whole period in which it accrued, a taverner; and this sum is composed of a great number of small charges against the defendant, for spiritous liquors, delivered to him, by the single glass, at the tavern bar, and drunk in the tavern house, of the plaintiff, at sundry times during the period of more than 12 years next prior to the 1st day of January, 1822. And the defendant claimed, that by the law of this state in force during that period, the sum in question could not be recovered, at any time subsequent to the expiration of two days next after the delivery of such liquors, nor become the subject matter of set-off between the parties, either at law or in equity, but was absolutely forfeited.
    On a special demurrer to this answer, the county court ren-deredjudgment for the defendant; and the plaintiff thereupon brought a writ of error in the superior court; which was reserved for the advice of this Court.
    
      Hill, for the plaintiff in error,
    contended, 1. That the answer of the defendant was ill, on special demurrer, being argumentative, and not direct. 5 Bac. Abr. 418. (Gwil. ed.) tit. Pleas. 1. 5. 1 Chitt. Plead. 513. Spencer v. Southwick, 9 Johns. Reps. 314. Fletcher v. Peck, 6 Cranch 126.
    2. That that part of. the plaintiff's account, which consisted: of a tavern bill, ought to have been applied to extinguish an equal sum in the defendant's account. If the statute limiting the recovery of tavern bills, is to receive the same construction as other statutes of limitation, there can be no doubt on this subject. Nichols v. Leavenworth, 1 Day 245. Catling & al. v. Skoulding, 6 Term Rep. 189. Cogswell v. Dolliver, 2 Mass. Rep. 217. 1 Swift's Dig. 307. Why should it not receive this construction? The phraseology and the object are similar. It takes away the right to bring any action, unless it be brought within the time specified. Stat. 644. (ed. 1808.) tit. 158. c. 1. s. 17. Other statutes of limitation use the same language-c. g. relating to bonds "no action shall be brought on any bond but within," &c. Stat. 460. (ed. 1808.) tit. 101. c. 1. s. 3. ; relating to trespass and slander "no action of trespass, nor of the case for slander, shall be brought, but, within," &c. Stat. 460. (ed. 1808.) tit. 101. c. 1. s. 4. ; relating to officers-" no suit or action, either in law or equity, shall hereafter be brought against any sheriff &c. but within" &c. In the revised statutes, this phraseology is used in relation to almost every subject of limitation. Stat. 310, 311. sect. 2.3. 4. 5. 6. 7. 9. 10. 11. The object of the legislature was, in this case, as in the others referred to, to discountenance credit for a longer time than the time limited, by taking away the remedy, but not to subject the party to an absolute forfeiture of his claim. The statute does not prohibit a taverner from selling liquors at his bar on a longer-credit than two days.
    C. Perkins, for the defendant,
    insisted, 1. That the defendant's answer was sufficient in point of form, the matters contained in it, being directly averred.
    2. That the tavern bill was properly rejected from the plaintiff's account. The object of the legislature was, to prevent the sale of spiritous liquors, by a taverner, at his bar, on a credit; and to effect this object, they intended to subject the transgressor to a loss of his claim-to destroy the debt itself. The provisions of the first statute regulating the conduct of taverners, passed in October, 1703, were found to be inadequate to suppress the vice of tipling. In May, 1712, the body of the 17th section, (p. 644. of edit. 1808.) of the act under consideration, was passed; by which all right of action ab inito, was taken away. This, surely, was an absolute forfeiture of the claim. The provisions of the section have since been qualified, so as to exempt from its operation two classes of cases; first, where the action was brought within two days; and secondly, where the debtor was a traveller or boarder. In all other cases, the forfeiture continued as absolute as before. This is not a mere statute of repose. It is founded on no presumption of payment. If it were, that presumption might be repelled, by an acknowledgment of the debt, or by part payment.
    3. That the plaintiff’s remonstrance was insufficient; as it did not shew that there was a balance of any amount justly due to the plaintiff.
   Bristol, J.

As much certainty is necessary, in remonstrances against the award of auditors, as in pleading. In the remonstrance made to this award, it was incumbent on the defendant, with reasonable certainty, to shew some good cause for setting aside the award. This he has attempted; but in my opinion, he has failed of bringing before the court the facts on which he intended to rely.

The remonstrance states two facts as grounds of objection to the award: 1st, That the auditors found the plaintiff’s account against the defendant, was more than the defendant’s account against the plaintiff and that the difference exceeded 20 dollars : 2ndly, That more of the plaintiff’s account was not barred by the statute of limitations, than the difference between the plaintiff’s and the defendant’s account, viz. the sum of 28 dollars.

From these facts the pleader infers, that the auditors committed an error, and that the award should be set aside. The obvious defect in this remonstrance, is, that no fact of any importance is stated,-nothing which shews that any erroneous decision was made by the auditors. By the expression, “ the auditors found, that the plaintiff’s account was more than the defendant’s,” can be understood nothing more than that the claim made by the plaintiff as exhibited in his account, was larger than that made by the defendant. It is not stated, that the auditors found the amount of the account justly due, but rejected it because it was outlawed. Finding that one account was larger than the other, is not finding that either of them was just, or that either of them was even due. If the plaintiff had no just debt, it is of no importance whether more or less of his account had been barred by the statute of limitations.

Tne answer to the remonstrance shews, that no recovery by the plaintiff ought to be had. The account for which the plaintiff sought a recovery, consisted of charges for liquor sold by the glass to the defendant, and drunk in the plaintiff’s tavern. The plaintiff claims, that the 17th section of the statute in force during the account, was a mere act of limitations, and that after the expiration of the two days allowed for bringing an action, it is still a just debt, and to be governed by the same rules as apply to all other debts, where the statute of limitations has run. On the other hand, in the opinion of the Court, the object of the legislature was a qualified or conditional prohibition of suits founded on tavern charges of this kind, by compelling them to be brought within two days after the credit was given, if brought at all, and prohibiting their being brought afterwards, not for the purpose of protecting men against stale demands, but to discourage the sale of spiritous liquors, on credit. From May, 1712, to 1750, the bringing of actions for drink sold by tavern-keepers, was prohibited. To this prohibition was then added a proviso in these words, “ unless the same be brought within two days after such sale and drinking.” This merely modifies the former prohibition; and after the lapse of the two days without suit, the prohibition is as absolute as it was before, and for the same reasons. To consider this as an ordinary statute of limitations, liable to be avoided by a new promise of the defendant, would be doing away all the benefits intended from the provision, and would be contrary to the whole spirit of the act regulating taverns.

The other Judges were of the same opinion.

Judgment affirmed.  