The opinion of the court was delivered by
Barrett, J.
I. Sec. 14, c. 53, Gen. Sts., makes the failure to exhibit the claim to the commissioners within the time prescribed, a bar to recovery on it. This embraces, and has reference to, any and every distinct subject and item for which the party claims to be allowed. The report of commissioners returned to the Probate Court, ordinarily states only the aggregate of claims when made up of á variety of items, like accounts, and the aggregate of offset, and shows the aggregate of allowance and disallowance, and the resulting entire balance, without showing the detail as to what particular items are allowed and disallowed. It is so in the present case, as shown by the copies of appeal. The report, therefore, would not show the claim in items, and so, for this reason if no other, could not be conclusive whether particular items of claim had been exhibited to the commissioners or not. In the present case, the specifications show that the claim of the plaintiff was made up of a large number of items, embracing a great variety of subjects, all presented in the form of a *98current account of debt and credit. The appeal vacates the judgment of the Probate Court, and carries the matter of claim and counter-claim before the County Court, to be acted upon as if it had original jurisdiction, and the same are to be litigated and adjudicated in that court, without regard to what was adjusted by the commissioners. 21 Vt. 490; 22 Vt. 333; 30 Vt. 213. As a ground and reason why a claim, asserted upon appeal in the County Court, should be barred, the fact that it was not exhibited to the commissioners might bring it within said section 14. But whether it was so exhibited or not, as bearing on the question whether barred or not, is to be determined upon proper issue and trial. On the trial in this case, the County Court assumed that the only evidence on the question whether certain items of claim liad been exhibited to the commissioners, was the report of said commissioners. This is adjudged to be erroneous. The evidence offered on that subject ought to have been received. This is in analogy to the rule and practice in cases that have frequently occurred in Which exactly what was the subject-matter of an adjudication does not appear on the record, and it is permitted to be shown by evidence aliunde the record. It is a repetition in substance of what was done in Clark, admr. v. Heirs of Clark, 21 Vt. 490. We know of no case or reason against our present views and decision.
II. The question under the second exception is, whether the secoud proviso in s. 24, c. 86, Gen. Sts., confines the right of the party to testify “ in whose handwriting the charges are and when made, and no further,” to the action, in form, of book account.
The language is, “ that in actions of book account, and when the matter in issue and on trial is proper matter of book account.”
It has been decided — 37 Vt. 573 and 641 — that under the first proviso the form of action, whether book account or something else, does not affect the application and operation of the proviso, and that the competency of witnesses in book account, is subjected in the same manner and to the same extent as in any other form of action ; and this in view of the reason and purpose of the statute.
*99It is well known that our action on book does not exclude assumpsit' for the same cause and matters — that the party may proceed in the one or the other on his own election. There is no reason then, in the nature of the case, why he should not stand upon the same rules of evidence in the one case as the other; and by the statute of 1852, he was máde so to stand, unless when the other party is dead, he is made to stand on a different rule. It is clear to my own mind, and in this all the members of the court concur, that in such case the statute, by its terms, puts him upon the same rule of evidence in reference to “ proper matter of book account,” whether the action itself be in form book account, or in some other form proper for the recovery of the same matters. In the first place it is to be noticed, that if it was meant to have the second proviso operate only in actions in form book account, there was no need of the appended clause, because nothing could be recovered in that form of a.ction that was not proper matter of book account; so that in that view, nothing was gained or added, in sense and effect, by that clause. Again, the expressions themselves indicate that the rule was intended for something besides an action in form book, account; for in the first clause it says, “ in actions of book account; ” while in the next clause, which professes to add something not contained in the first clause, it says, “ and when the matter at issue and on trial is proper matter of book account;” thus changing the form of expression, abandoning any reference to any specific form of action, and using a form of expression that characterizes the subject-matter of the issue and trial, without regard to the form of the pending action ; and not indeed requiring any action to be pending, but only a proceeding before commissioners on an estate, or before an arbitrator or referee. If it had been the design to confine the proviso to actions of book account, instead of the appended clause, it would have said, “ that in actions of book account in which the matter in issue and on trial is proper matter of book account; ” thus confining it by that limit, instead of using language that docs not thus limit the rule, but on the contrary renders it equally applicable to other forms of action and proceeding.
When it is considered that “ proper matter of book account *100may bo in issue and on trial ” as well in an action of assumpsit, or before commissioners, or arbitrators, or referees, as in the action of book, it would seem to bo only by violence that the language of the second proviso could be held to apply only to the action, in form, of book account. While it is ample to embrace such matters as are proper for book account when in issue and on trial in other forms of action and proceeding, and every reason exists and operates for giving it application and effect in those other forms and proceedings, the same as in actions of book, it seems beyond doubt or question that it should have such application and effect. Whatever the form of action or proceeding, whenever the book entries would constitute an instrument of evidence on the issue on trial, according to the idea of the common law, as developed by Wilson, J., in Hunter v. Kittridge’s Estate, 41 Vt. 359, the party is competent under said second proviso, to the intent therein provided, and to the extent therein limited. The court erred in this respect.
III. As to the third point of exception. The plaintiff’s cause of action was all matter ex contractu with the deceased intestate, and that was in issue.
The settlement set up against the plaintiff’s cause of action, and the papéis offered as evidence of that settlement, were all matters transacted by and between the plaintiff on the one hand and the deceased in his lifetime on the other; so that one of the parties to the whole subject of the controversy — both the plaintiff’s demands and the settlement of them as claimed by the defendant — was dead, thus making a case of disqualification of the living party to testify in respect thereto, within the terms and intent of the statute. So far as the decided cases on this subject bear any analogies to this feature of this case, they countenance what we now hold. The other ground of exception is not affected with any apparent error.
Judgment reversed and cause remanded.