64 Vt. 511 | Vt. | 1892
The opinion of the court was delivered by
The Compiled Statutes, chap. 46, sec. 5, provides that the County Court for Windsor county shall be held at Woodstock, and the place of holding the court does not appear to have been inore definitely fixed by any statute. R. L. sec. 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 statéd 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., sec. 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 sec. 804 of R. L. Judge Marsh was sick and unable to go to the court house. This was a legal disqualification. In State v. Blair et al., 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 pre
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.
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 wdfe shall 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 rélates 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. 13-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 memoranda made by the plaintiff. Bennett, J., in delivering the opinion of the court, says : “ It is well understood, as the entire scope and language of the statute indicates, 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.”
The finding of the auditor that the work was performed on Sunday is not equivalent to a finding that the service was performed between twelve 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. All rea" sonable intendments are to be made in support of the conclusions and judgment of an auditor and the County Court. Bradstreet v. Bank of Royalton, 42 Vt. 128. It not appearing that the service was not work of necessity or charity, nor that the service was performed between twelve 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.
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
The contract-having been made with the plaintiff personally there is no legal objection to including this cause of action in an action to recover for causes of action accruing to him in his own right. They 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.
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 ly the ■ County Court.