whether or not the intestate disposed of this allegation with the averment that * * ** 'R. L. Vt. (1880) § 1002, provides that "in ac- BATES V. SABIN. (64 Vt. 511) (Supreme Court of Vermont. Windsor. Aug. COUNTY COURTS-PLACE OF HOLDING ADJOURN TORS. 1. Comp. St. c. 46, § 5, provides that the county court of Windsor county shall be held at Woodstock; and R. L. § 804, provides that the county courts, when the state of business requires it, may adjourn the same to any day previous to the stated term. Held that, since the place of holding such court is not more definitely fixed, it had the power to adjourn to the residence of an assistant judge, who was ill, in Woodstock, and enter judgment in a case pro forma. 2. R. L. § 797, provides that one judge of the county court may try and determine causes pending in such court, when other judges are disqualified. Held, that the power thereby granted included the power to adjourn the court to a future day, and a different and lawful place. 3. Where a judge is absent during a sitting of the court, it will be presumed that his absence was because he was disqualified, unless the contrary affirmatively appears. 4. Where it appears that there are proper items of credit in an account which take it out of the statute of limitations, such items are properly allowed, though no claim therefor is made by defendant. 5. Acts 1886, No. 45, provides that, in matters of business transactions conducted by the wife as the agent of her husband, she is a competent witness for him. Held, that the wife was not a competent witness to prove the payment of items of an account against the husband, made by the wife in his presence and by his directions, since only transactions of which he has no personal knowledge are contemplated by the statute. 6. R. L. 84315, provides that a person who, between 12 o'clock Saturday night and sunset on the following Sunday, exercises any business or employment except such only as works of necessity and charity, shall be fined not more than two dollars. Hell, that the allowance by an auditor of a charge in an account for services rendered on Sunday will be presumed to be for lawful services, unless the contrary affirmatively appears. 7. Where it appears that plaintiff, at defendant's request, settled an account held by a third person against defendant, the agreement of defendant to pay plaintiff the amount thereof is Lot within the statute of frauds, as an agreement to pay the debt of another, but is an agree ment to pay plaintiff a sum paid out by him for defendant's benefit. 8. In an action on an account, it appeared that plaintiff was an administrator, and contracted with defendant to feed the latter's stock on corn and hay belonging to the estate. Held, that plaintiff could maintain a personal action on an account for feeding the stock, and need not bring it in his representative capacity, though he had not settled with the estate therefor. 9. An auditor need not state in his report the method adopted by him of computing interest on an account, unless he is requested to do so. 10. Plaintiff's memorandum books are admissible in evidence in an action on an account, in: connection with his testimony, though not as independent evidence. 11. Oral evidence is admissible to prove services performed by plaintiff in serving writs for defendant at an agreed sum per day. 12. Where no facts are reported by which it appears, as a matter of law, that a finding of an auditor is erroneous, such finding is conclusive. Exceptions from Windsor county court; TAFT, Judge. Action by James G. Bates against William H. Sabin on an account. Judgment for plaintiff on the report of the auditor, and defendant excepts. Affirmed. William Batchelder and William E. Johnson, for plaintiff. Gilbert A. Davis and Norman Paul, for defendant. START, J. 1. On the 31st day of December, 1891, the Windsor county court took a recess until the 9th day of January, 1892, at which time R. S. TAFT, the presiding judge, was present; WILLIAM ROUNDS, assistant judge, was absent; CHARLES P. MARSH, assistant judge, was ill at, and unable to leave, his residence, situated in the village of Woodstock, a short distance from the courthouse. The court adjourned to the residence of Judge MARSH, and there rendered judgment pro forma for the plaintiff. The defendant excepted to the action of the court in adjourning to, and rendering judgment at, Judge MARSH'S residence. Comp. St. c. 46, § 5, provides that the county court for Windsor county shall be held at Wood. stock, and the place of holding the court does not appear to have been more definitely fixed by any statute. R. L. § 804, provides that the supreme and county courts, when the state of business requires it, may adjourn their respective courts within the county in which they are usually held to any day previous to the next stated term. The power of the county court for Windsor county, in respect to time and place of adjournment, is not limited except as provided in the section above referred to. It had power to adjourn to Judge MARSH's residence, and the adjournment by the presiding judge must be regarded as the act of the court. R. L. § 797, provides that one judge of the county court may try and determine causes pending in such court, when the other judges are disqualified. The power thus conferred necessarily includes the power to adjourn the court, and, in this respect, the presiding judge had the same authority that is given to county courts by section 804, R. L. Judge MARSH was sick, and unable to go to the courthouse. This was a legal disqualification. In State v. Blair, 53 Vt. 24, it is held that legal disqualification in a judge may originate in physical causes, as well as interest or relationship. It does not appear why Judge ROUNDS was not present. It was his duty to be present, unless he was physically or otherwise disqualified, and this court will not presume that he did not do his duty. He may have been disqualified. Error must appear in order to justify this court in reversing the judg. ment of the court below. The presumption is that there is no error when, from the statement in the exceptions, none appears affirmatively. McNeish v. Oat Co., 57 Vt. 316. 2. The statute of limitations is a bar to the plaintiff's recovery, unless his account is taken out of its operation by certain credits allowed to the defendant by the auditor. In respect to these credits, the auditor finds that it was agreed between the parties that the defendant should furnish the plaintiff board at 25 cents a meal; that, under this agreement, the plaintiff had board at the defendant's house, but that the defendant testified that he claimed nothing for board after September 3, 1883, and had no charge for the same after that date. The auditor has found that this agreement was not limited as to time, and that the items for board subsequent to September 3, 1883, allowed by him, are proper items of credit. It is not claimed that the evidence did not tend to show that the board was a proper item of credit, and, the auditor having so found, his finding is conclusive. Rixford v. Miller, 49 Vt. 319. The item of board being a proper credit to the defendant, the plaintiff's account is saved from the operation of the statute. Chapman v. Goodrich, 55 Vt. 354. In Davis v. Smith, 48 Vt. 52, it was held that, in matters of account, one party may credit to the other items that represent a legal indebtedness that should go into the account, and thereby avoid the bar of the statute of limitations, although the other party has not charged such items, and insists that they should not be allowed him. 3. Items 144 and 145 of the plaintiff's specification are for services and expenses in. curred in attending court as a witness for the defendant. The auditor finds that the defendant directed his wife to pay his witnesses, and, from the testimony of the defendant's wife, finds that she did pay the plaintiff in the presence of her husband. If the defendant's wife was a competent witness under the circumstances, the auditor finds these items should be disallowed; otherwise they should be allowed. The competency of the defendant's wife as a witness, under the circumstances reported by the auditor, depends upon the construction to be given No. 45 of the Acts of 1886. This act provides that, in matters of business transactions conducted by a husband as the agent of the wife, or by the wife as the agent of her husband, both husband and wife should be competent witnesses for each other. The claimed payment was made by the wife by direction of the husband and in his presence. Can it be said that this was a business transaction had and conducted by the wife as the agent of her husband? We think not. The transaction must be regarded as having been conducted by himself. It cannot be said that this business was had with and conducted by his agent, when he was present and directed to be done just what was done. The statute clearly has reference to business transactions conducted by the wife as the agent of her husband, of which he has no personal knowledge. So far as the act of 1886 relates to the right of the wife to testify as to transactions conducted by her as the agent of her husband, it is substantially like No. 15 of the Acts of 1858. In Eastabrooks v. Prentiss, 34 Vt. 457, it was held that the plaintiff's wife was not a competent witness, under the act of 1858, to show the state of the plaintiff's accounts, kept by her from original memo. randa made by the plaintiff. BARRETT, J., in delivering the opinion of the court, says: "It is well understood, as the entire scope and language of the statute indicate, that the purpose of that provision was to enable proof to be made of transactions of which the husband had no personal knowledge, and the wife had, for the reason that she personally negotiated, as a substitute for, and in the place of, her husband in such transactions. This case is distinguishable from that of Pierce v. Bradford, decided at the last general term of this court, and reported in 23 Atl. Rep. 637. In that case the defendant offered to show by his wife an act done by her as his agent in his absence, and of which he had no personal knowledge. 4. Item 26 of the plaintiff's specification is for service performed on Sunday, and items 27 and 28 are for expenses attending this service The defendant claims these items should have been disallowed by the auditor. R. L. § 4315, provides that a per. son who, between 12 o'clock Saturday night and sunset on the following Sunday, exercises any business or employment ex. cept such only as works of necessity and charity, shall be fined not more than two dollars. If it was unlawful for the plaintiff to perform the service charged for, at the time he performed it, these items should have been disallowed. Whether the service was a work of necessity or charity was a question of fact, to be determined by the auditor. Com. v. Gillespie, (Pa. Sup.) 23 Atl. Rep. 393. by direction of the defendant, extinguished a debt owing from the defendant to Crosby; and, in effect, the plaintiff has paid out the sum charged for the benefit of the defendant, and at his request. 6. The defendant claims that item 139 of the plaintiff's specification should have been disallowed by the county court. The auditor finds that the plaintiff was administrator of the estate of Taylor Alexander, and kept some cattle for the defendant on hay, straw, and corn fodder belonging to said estate, and that he has not accounted to said estate for the same. The defendant's contract for the keeping of his cattle was made with the plaintiff, his promise was to pay the plaintiff, and the defendant's liability is in no way dependent upon the plaintiff's accounting to the estate he represents for this item. The defendant is accountable to the plaintiff only, and it is immaterial to him whether the plaintiff has accounted to the estate, as it was his duty to do. The defendant is not excused from performing his undertaking to pay the plaintiff, because the plaintiff has been remiss in the performance of his duty in matters in which the defendant is in no way concerned, and by which he can in no way be affected. Haskell v. Bowen, 44 Vt. 579. The plaintiff can recover this item in this action, notwithstanding he has declared in his individual capacity. The privity of contract is not between the defendant and the estate; there was no contract with, or promise to, the plaintiff's intestate. The contract is between the parties as individuals, and as between them is personal, and there was no occasion for the plaintiff to declare in his representative capacity. He had a right, as between himself and the defendant, to treat himself as a debtor of the estate to the amount of this item, and the defendant his own debtor, and sue thereon in his individual capacity. Aiken v. Bridgman, 37 Vt. 249. The contract having been made with the plaintiff personally, there is no legal ob The finding of the auditor that the work was performed on Sunday is not equivalent to a finding that the service was performed between 12 o'clock Saturday night and sunset on the following Sunday, or that the service was not work of necessity or charity, and, he having allowed these items, it will not be presumed that the service was illegal. The presumption is that it was lawful for the plaintiff to perform the service. We cannot presume that the service was not one of necessity or charity, nor that it was not performed after sunset on Sunday.jection to including this cause of action in All reasonable intendments are to be made an action to recover for causes of action are all causes of action for which he may recover without declaring in a representative capacity. They all accrued to him, and are properly joined in the same action. Haskell v. Bowen, supra; Rix v. Nevins, 26 Vt. 384; Pope v. Stacy, 28 Vt. 96; Hutchinson v. Ford, 62 Vt. 97, 18 Atl. Rep. 1044. in support of the conclusions and judg. | accruing to him in his own right. They ment of an auditor and the county court. Bradstreet v. Bank, 42 Vt. 128. It not appearing that the service was not work of necessity or charity, nor that the service was performed between 12 o'clock Saturday night and sunset on the following Sunday, there is no legal objection to a recovery for these items. Nason v. Dinsmore, 34 Me. 391. 5. Item 39 was not within the statute of frauds, and was properly allowed. The auditor, in effect, finds that the defendant was owing one A. J. Crosby; that Crosby was owing the plaintiff; that the defendant told Crosby to settle with the plaintiff, who was doing business for him, whereupon Crosby and the plaintiff settled the account Crosby had against the defendant by offsetting the same against the plaintiff's account against Crosby; and that the defendant agreed that he would pay the plaintiff the amount thus paid to Crosby for him. This was not an agreement to pay Crosby's debt. The plaintiff, 7. The defendant insists that judgment should be reversed because the auditor has not stated in his report the method adopted by him in computing interest, and because it is impossible to determine from the report how he found as he did upon the item of interest. There is nothing in the report that would justify this court in so holding. It does not appear that the auditor was requested to report his method of computing interest. He was under no obligation to do so, unless requested. It not appearing that he adopted a wrong method, the court will not presume error for the purpose of reversing the judgment. If the defendant does not know what rule was adopted by the auditor, it is his own fault. He might have known by request. ing him to report his method of computation. 8. There was no error in the ruling of the auditor in admitting the plaintiff's memorandum books. We understand from the report that they were not admitted as independent evidence, or considered by the auditor as such, but were received and considered in connection with the plaintiff's evidence. In this connection, they were admissible. Soules v. Burton, 36 Vt. 652; Lapham v. Kelly, 35 Vt. 195. 9. The testimony of the plaintiff, relating to services performed for the defendant by serving writs in which the defendant was plaintiff, was properly received. The writs were returnable process, and, presumably, had been returned to the court from which they issued. There was no question before the auditor which required their production. The plaintiff sought to recover for services performed under an agreement by which he was to have two dollars a day and his expenses, and he was under no obligation to produce the instruments in respect to which he performed the service. Houghton v. Estate of Paine, 29 Vt. 58; Hammond v. Rice, 18 Vt. 353; Goodrich v. Mott, 9 Vt. 395. 10. The finding of the auditor that the plaintiff performed services in and about getting money at the Woodstock Bank, at the request of the defendant and for his benefit, is conclusive upon the question of the defendant's liability therefor. The defendant claims that these causes of action are merged in a note given by the defendant to the plaintiff, but the auditor has not so found, and no facts are reported from which the court can hold, as a matter of law, that they are so merged. Judgment affirmed as of the date it was rendered by the county court. (64 Vt. 652) LEGG V. BRITTON. (Supreme Court of Vermont, General Term. May 13, 1892.) DEATH BY WRONGFUL ACT-ACTION IN RIGHT of INTESTATE-RIGHTS OF WIDOW AND NEXT OF KIN. R. L. Vt. § 2134, provides that where either party dies, pending an action for personal injuries, the action may be prosecuted to final judgment by or against the personal representative of decedent. Section 2138 provides that when the death of a person is caused by the wrongful act of another, in respect whereof the person injured could have recovered if death had not ensued, the person guilty of such wrongful act shall be liable to an action for damages, though the death is so caused as to amount to a felony; and section 2139 provides that the recovery in such case shall be by the personal representative, for the benefit of the widow and next of kin. Held, that where plaintiff, in an action for personal injuries, died from such injuries pending the action, and his administrator recovered judgment therein under section 2134, such judgment is a bar to an action by the administrator for the benefit of the widow and next of kin, under sections 2138, 2139. Exceptions from Windsor county court. Action by James Legg, Jr., as administrator, against Henry S. Britton, to re cover damages for the benefit of the widow and next of kin for the wrongful act of defendant, resulting in the death of plaintiff's intestate. A demurrer to plaintiff's replication to the plea was overruled pro forma, and defendant excepts. Exceptions sustained. The defendant pleaded in bar that the intestate in his lifetime began suit against the defendant for the same neglect which was now alleged by the plaintiff to have occasioned his death, and deceased while said suit was pending; that thereupon his administrator entered and prosecuted the same to a judgment, which the defendant paid. The plaintiff replied that the damages recovered and paid in that suit were for the injuries done the intestate in his lifetime, and did not include e damages occasioned his widow and next of kin by his death. Hunton & Stickney, for plaintiff. W. E. Johnson and Gilbert A. Davis, for defendant. Ross, C. J. The intestate was injured by the unlawful act or neglect of the defendant. He brought a suit to recover therefor, and, pending the suit, died, it is claimed, from the injury so received. His administrator entered and prosecuted that suit to final judgment, which has been satisfied. The administrator subsequently brought this action, under R. L. § 2139, to recover for the widow and next of kin the pecuniary injury resulting to them from the death of the intestate. To this action the defendant has pleaded in bar the judgment in the suit commenced by the intestate in his lifetime, and its satisfaction. The contention is whether the plea is a good answer to this suit. Each party claims that this contention is settled in his favor by former decisions of this court. The plaintiff relies upon Needham v. Railway Co., 38 Vt. 294. In that case the question is discussed at length, and the views of the court given thereon in favor of the plaintiff's contention. Tbat decision, made in 1865, remained unquestioned until 1881. It is referred to, not by name, but in principle, with approval by Judge PECK, in Harding v. Townshend, 43 Vt. 541, and by TAFT, J., in Westcott v. Railroad Co., 61 Vt. 440, 17 Atl. Rep. 745. But in neither case was the question in controversy under consideration, nor was there any attempt to discuss or decide it. Nor was this question involved in the point, decided in Needham v. Railway Co. The point decided in that case is that the injury to the deceased having occurred in New Hampshire, under whose theu exist. ing laws no right of action in either form survived, the plaintiff could not maintain an action therefor in this state. This court held, as is every where held, that the laws of the place of the accident occasioning the injury governed the rights of the parties in reference thereto. To this decision it was not necessary to consider whether, under the laws of this state, one or more rights of action survived to the administratrix. We fully recognize, however, the ability of the court rendering that decision, and the ability with which the ques Vt.) LEGG v. BRITTON. tion, whether the statutes of Vermont for such an injury gave one or two rights of action, is discussed. The defendant relies upon the unreported case of Halliday's Adm'rs v. Dover, (heard and decided at the general term of this court in 1881.) The precise question raised in this case was raised in that case, discussed, and considered. Judge VEAZEY, to whom the case fell, drew up an opinion upon this question which met the approval of a majority of the court, in effect overruling some of the conclusions maintained in Needham v. Railway Co. But, as one or more of the judges did not concur in the views he had expressed, the case was not published, and, as Judge VEAZEY now recollects, was finally disposed of on the insufficiency of the notice to the town. Hence, so far as concerns the views pre- as upon the construction given to R. L. § 2138, But the whole act of 1849 is to be considered as contended by the plaintiff. The |