same since the statute allowing parties to be making up and publishing his report, to open witnesses in general. Matthews v. Tower. the cause for further testimony. This discre117. The non-joinder of a party defendant tion might be revised in the county court, but is matter of defense before the auditors and error cannot be predicated of it. Chase v. cannot be pleaded in abatement. Loomis v. Bar-Spencer, 27 Vt. 412. rett, 4 Vt. 450. Smith v. Watson, 14 Vt. 332. 129. If one of two partners, defendants in Hagar v. Stone, 20 Vt. 106. (Goddard v. an action on book, die after the accounts are Brown, 11 Vt. 278. Smith v. Bradley, 39 Vt. submitted to an auditor, he may proceed to 369.) audit the accounts notwithstanding. Newton v. Higgins, 2 Vt. 366. 118. The law is the same though the omitted co-contractor resides without the State-since process might have issued against him. Bailey v. Hodges, 19 Vt. 618. 130. Accounts to be adjusted down to time of hearing. The auditor must adjust all the items of account due and payable at the 119. A payment, accord and satisfaction, time of taking the account, though not due nor settlement or release, unless it be a release of accrued at the commencement of the suit, prothe action, cannot be pleaded, in bar, but may vided any part was due and payable before suit be used in defense before the auditors. Dela- brought. Ambler v. Bradley, 6 Vt. 119;-and ware v. Staunton, 8 Vt. 48. Matthews v. Tower, this, although the result be to change the bal39 Vt. 433. ance and turn the case to the other side. v. Gallup, 7 Vt. 344. 120. Nor can it be pleaded that the defendants declared against as partners were never partners. Porter v. Smith, 20 Vt. 344. Pratt 131. It is the duty of a justice of the peace, in an action of book account, to adjust the ac121. Nor can the statute of limitations be counts up to the time of trial; and of the audipleaded in bar. Smith v. Bradley, 39 Vt. 366. tor, in case of an appeal, to the time of the 122. But in an action of book account by audit. Martin v. Fairbanks, 7 Vt. 97; provihusband and wife, the death of the wife pending the suit cannot be objected to before the auditor. The question is one for the court upon proper motion. Perry v. Whitney, 30 Vt. 390. 123. Distinction in matter of pleading noted, between the action of account and book account. Matthews v. Toner, 39 Vt. 433. ded, that any part of the plaintiff's account had become due at the commencement of the suit. Wetherell v. Evarts, 17 Vt. 219. 132. This right of the plaintiff to have the accounts adjusted down to the time of the audit and to have his attachment stand as a security for the balance so found due him, is not defeated by an attachment subsequent to his own. Chaffee v. Malarkee, 26 Vt. 242. Note.-By Stat. 1872, No. 54, special defenses, proper for a plea in bar, may be made 133. The plaintiff drew an order on the debefore the auditor in the common law action of fendant requesting him to pay C a certain sum to be accounted for to the defendant on settle account. 124. Set-off. A mere independent set-off, ment. The defendant wrote upon the order an not a matter of account, cannot be brought in agreement to pay C what might be due the before the auditor, but must be pleaded in the plaintiff after settlement. An attempted settlecounty court. Hassam v. Hassam, 22 Vt. 516. ment having failed, the plaintiff brought this 125. Proceedings. It need not appear of action of book account before a justice and obrecord that an auditor was sworn. This will tained a judgment from which the defendant be presumed unless the contrary appear. Put-appealed, and after the appeal paid C the full nam v. Dutton, 8 Vt. 396. Reed v. Talford, 10 amount of the order, which exceeded the sum Vt. 568. 11 Vt. 201. due the plaintiff. Held, that the defendant was 126. In the case of three auditors, two may entitled to a judgment for the excess. Normake report, provided the other sit at the hear-throp v. Sanborn, 22 Vt. 433. ing, though he may dissent from the majority. 134. The bringing of an action of book acThompson v. Arms, 5 Vt. 546. Newell v. Keith, count is not per se a revocation of a previous 11 Vt. 214. 23 Vt. 465. authority given the defendant to pay, to a third 127. It is not necessary that auditors should person, certain items of the plaintiff's account. convene and organize before giving notice of Unless otherwise revoked, the defendant will the time and place of hearing, but such notice be allowed such payments made after suit commay be given by one of the number, usually menced, though the effect be to change the balthe one first named, without the presence of the ance to his side. Ib. Walker v. Barrington, others; nor need they all convene for the pur-28 Vt. 781. pose of an adjournment; and where the party 135. Production of books. In this acis once duly notified, he must take notice of the tion a party is not bound to produce his original adjournment. Swinton v. Erwin, 8 Vt. 282. book of entries, unless required so to do by the 128. An auditor has power, after a cause auditor, or the court; and this is matter of dishas been heard and submitted, especially before cretion, first of the auditor, and then of the Goodnow, 42 Vt. 682. Macks v. Brush, 5 Vt. 70. Flower Brook Mfg. Co. v. Buck, 16 Vt. 290. Read v. Barlow, 1 Aik. 145. county court. Held, that it was not error in of the parties, and a statement of the items of Croker v. this case, to allow a disputed account without each that he allows, or disallows. requiring the production of the original book, although this was insisted upon by the other party. (G. S. c. 41, s. 8.) Ward v. Baker, 16 Vt. 287. 144. And if requested, but not otherwise, 136. Held, that it was not error for an au- he must also report the facts or grounds of alCroker v. Goodditor to receive, on the plaintiff's side, a letter lowing or disallowing items. written by the plaintiff to the defendant, which now. Macks v. Brush. Hoyt v. Clark, 39 Vt. he claimed to be a specification of his claim and 87. to contain all the facts upon which it was 145. An exception to the report of an audibased, as a sort of original entry-there being tor, that he has not appended to the report the no other original entry, and the plaintiff being himself a witness. Houghton v. Paine, 29 Vt. 57. account of the excepting party, will not be allowed, unless it appear affirmatively, that such an account was presented at the hearing before him. Hill v. Hogaboom, 13 Vt. 141. 146. Special findings. When requested, 137. Parties as witnesses. In the action of book account both parties, being made witnesses by statute, may testify to every material auditors should report the facts found with the fact in relation to the respective accounts prop- particularity of a special verdict ;—upon affidaer to be considered in deciding upon the merits vits showing their refusal so to do, their report of the several claims. Stevens v. Richards, 2 will be set aside. McConnell v. Pike, 3 Vt. Aik. 81. Burton v. Ferris, Brayt. 78. Fay 595. v. Green, 2 Aik. 386. May v. Corlew, 4 Vt. 147. The report of an auditor stated simply 12. Hilliker v. Loop, 5 Vt. 116. Whiting v. that the account presented was disallowed. Corwin, 5 Vt. 451. McLaughlin v. Hill, 6 Vt. Held sufficient,-it not appearing that he had 20. Blish v. Granger, 6 Vt. 340. Delaware been requested to state the facts or grounds v. Staunton, 8 Vt. 48. Fassett v. Vincent, 8 upon which he disallowed the account. Wait Vt. 73. Reed v. Talford, 10 Vt. 568. War- v. Johnson, 24 Vt. 112. den v. Johnson, 11 Vt. 455. Clark v. Marsh, 20 Vt. 338. 22 Vt. 611. Carter v. Wright, 25 Vt. 656. 148. Report in the alternative. Auditors may submit any question of law to the court, and for that purpose they may report in the alternative. May v. Corlew, 4 Vt. 12. 138. It is otherwise as to matters which occur subsequent to and are independent of the 149. To report facts,-not evidence. account, as such; as, for example, a tender, a An auditor must report facts,-not evidence new promise to take the case out of the statute merely. Stoddard v. Chapin, 15 Vt. 443. 45 of limitations, and possibly some others. Red- Vt. 346. field, C. J., in Clark v. Marsh, 20 Vt. 341. 139. So held, as to a new promise, Paul v. Trescott, 6 Vt. 26. White v. Dow, 23 Vt. 300; -as to a tender, Pratt v. Gallup, 7 Vt. 344;as to a new promise after a discharge in bankruptcy, Spaulding v. Vincent, 24 Vt. 501. 150. An auditor must report facts, not the evidence of those facts; but the court may make all the presumptions which necessarily follow from the facts reported. Shaw v. Shaw, 6 Vt. 69. 151. How far conclusive. An auditor 140. But the party may testify to a credit should report facts, not evidence. His finding on account, or payment, although the effect of of facts is conclusive, and cannot be revised establishing it may be to save the account from by the Supreme Court. Smith v. Woodworth, the operation of the statute of limitations. 43 Vt. 39. Sargeant v. Sunderland, 21 Vt. 284. Hapgood 152. An error in computation made by an v. Southgate, 21 Vt. 584. Noyes v. Cushman, 25 Vt. 390. 141. A note, given up to the maker to apply on his account against the payee, may as well be testified to by the party in the book account action, as any other payment. Fassett v. Vincent, 8 Vt. 117. 142. In an action of book account against two;-Held, that the plaintiff might prove by one of the defendants that the other was holden with him. Keeler v. Mathews, 17 Vt. 125. auditor is an error of fact, and, when not passed upon in the county court, cannot be revised or corrected by the Supreme Court. Cobleigh v. Stone, 29 Vt. 525. 153. Where an auditor reports the evidence upon which he found a fact, and such evidence tended to prove it, his finding is conclusive; but if the evidence had no such tendency, his finding is erroneous and may be corrected. Hodges v. Hosford, 17 Vt. 615. 154. The finding of a fact by an auditor is 143. Report-copies of accounts to be usually conclusive upon the court; but if the annexed. It is not a matter of discretion, but matter found by him, as a fact, is merely his the duty of an auditor, although not requested, inference from other facts specially found and to return with his report copies of the accounts stated, and the proper resulting fact is one which the law would infer from the special court inferred such facts from the report, as on facts stated, and the auditor makes a mistake in an examination it can be seen ought to have law in his inference, the court may disregard been inferred. Pratt v. Page, 32 Vt. 13. Stone his ultimate finding, and render judgment ac- v. Foster, 16 Vt 546. cording to the legal inference. Briggs v. Briggs, 46 Vt. 571. 163. In regard to such inferences as may be fairly deduced from the facts stated in an audi155. Upon a report of auditors finding that tor's report, the Supreme Court considers that, a son had hired with and worked for his father in doubtful cases, the construction of the county some 33 years after becoming of age, and that court is to be regarded as conclusive. Perhe reasonably deserved to have a certain sum linau v. Phelps, 25 Vt. 478. therefor; that the father had acknowledged an 164. Matters of evidence. If testimony indebtedness to the son, but "did not find, before an auditor could be held admissible in otherwise than by inference, that the services any view, or in connection with any other eviwere performed at the request of the father";--dence, it cannot be held, upon exceptions, to Held, that the report sufficiently showed that have been inadmissible where the report is, that the services were performed at the request of it was offered and admitted among other the father, under the mutual expectation of a things not objected to.” Paige v. Morgan, 28 reasonable compensation therefor; and that Vt. 565. stances. Way v. Way, 27 Vt. 625. this was sufficient to entitle the son to recover, 165. The admission of evidence for the purwithout proof of an express promise to pay. pose of proving facts altogether unimportant, The law implies the promise under the circum- which could not have prejudiced the objecting party and which was admissible for another 156. Where the evidence before an auditor purpose, is not sufficient reason for setting aside has a legal tendency to prove the fact in contro-an auditor's report. Kendrick v. Tarbell, 27 versy, his decision upon the weight and suffici- Vt. 512. ency of the evidence is conclusive. Bagley v. Moulton, 42 Vt. 184. Wood v. Barney, 2 Vt. 369. Phelps v. Wood, 9 Vt. 399. Cottrill v. Vanduzen, 22 Vt. 511. Kent v. 166. An objection to the admission of testimony by an auditor must be taken by exceptions to his report, and a motion to recommit. It is not reached by exceptions to the judgment Kidder v. Smith, 34 Vt. 157. Inference. Whether an auditor comes of the county court. to his result upon direct and positive testi- 294. mony, or by inferring facts which might be 167. Where a witness, interested as bail for legitimately inferred from the evidence, is im- the party calling him, testified before auditors material. His finding is conclusive in either against the objection of the opposite party, who, case. Bacon v. Vaughn, 34 Vt. 73. from absence of the record, could not prove Hancock, 13 Vt. 519. such interest;-Held, that the report in favor of the party using the witness should be set aside. McConnell v. Pike, 3 Vt. 595. 168. Affidavits, &c. The Supreme Court will not examine reports of auditors upon affidavits, counter statements, questions of fact, or matters of discretion for the county court, but only upon errors of law. Thompson v. Arms, 5 Vt. 546. 158. All reasonable intendments are to be made in support of the conclusions and judgment of an auditor, and the county court. (See case, as to inferences drawn.) Bradstreet v. Bank of Royalton, 42 Vt. 128. 159. The report of an auditor should not be set aside because the auditor states his conclusion generally, where, upon either of the two grounds stated, it was justifiable upon the evidence. Cahill v. Patterson, 30 Vt. 592. 169. Recommitment. A motion to recommit the report of an auditor will not be enter160. Finding by county court. If an au- tained by the Supreme Court, where the case ditor reports the testimony, instead of finding stands upon exceptions. Any cause for a new the facts, and a party, without exception or trial should be brought forward by petition. motion to recommit, proceeds to a hearing up- Hutchinson v. Onion, 24 Vt. 654. on the report, he thereby submits the issue of fact to the court, and such finding cannot be revised by the Supreme Court. Bond v. Clark, 47 Vt. 565. 170. In actions of book account, where it is apparent that all the facts are not stated in the auditor's report, the Supreme Court has, in some cases, been induced to reverse the judgment 161. Where the county court, instead of and recommit the report to the auditor to rerecommitting the report of an auditor, under-port more fully,- -as in Woodbridge v. Proprietakes to decide any question of fact, or to draw tors of Addison, 6 Vt. 204. But the practice any inference of fact arising on the report, such has been otherwise, of late, and the settled decision is final. Birchard v. Palmer, 18 Vt. practice has been for the Supreme Court to deny 203. Barber v. Britton, 26 Vt. 112. an application to recommit. Clark v. Whipple, 12 Vt. 483. 162. The Supreme Court will only presume in aid of the judgment below, that the county 171. Where an auditor disallows a charge, Whiting v. Corwin, 5 VII. EFFECT OF JUDGMENT AS A BAR. the party is entitled to have the grounds of such Hosford, 17 Vt. 615. 179. In the action of book account, either party may sue and insist on an adjustment of 172. Where an auditor had reported evi- the account. If the defendant refuses to predence, but not facts sufficient to warrant the sent his account, although he may have an acjudgment below, the court, after reversing the count exceeding the plaintiff's, this is no bar to judgment, remanded the case, on request, for the plaintiff's recovery, unless the defendant a further finding and report. Walsh v. Pierce, shows an agreement, or understanding on both 11 Vt. 32. Hunt v. Haynes, 45 Vt. 346. parts, to have the plaintiff's account apply in 173. Where an auditor finds a fact and al-payment of some claim of the defendant. Scott lows a charge upon improper testimony, the v. Nichols, 12 Vt. 76. 455. court does not on this account reject the charge, 180. In an action of book account before a but again refers the subject to the same or an- justice, the plaintiff omitted to present part of other auditor. Warden v. Johnson, 11 Vt. the account on his book, claiming and supposing that it had been settled. The defendant 174. Where exceptions were filed to an au-denied the settlement, and presented and claimditor's report, and exceptions to the judgment ed an account in his favor which the plaintiff thereon, the Supreme Court reversed the judg- claimed was included in the supposed settlement and again referred the cause to the audit-ment. The justice found that there had been or, to make report to the Supreme Court, be- no settlement, and allowed the defendant's accause the facts were not sufficiently stated to count, giving judgment for the balance between raise the questions of law litigated. Eddy v. that and such of the plaintiff's account as he Hine, 3 Vt. 389. 10 Vt. 140. presented. Held, that such judgment was no 175. Where a report of auditors is wholly re-bar, in a subsequent action on book, to a recovjected, the whole case is again submitted to the ery for the items so omitted the reason for same or another board of auditors, who are to failure to present them on the first trial being hear the whole case anew; or it may be recom-sufficient. Stevens v. Damon, 29 Vt. 521. mitted simply for amendment, or correction, in 181. The plaintiff in an action of book account which case no further hearing will be had; or cannot divide his account, and make it the subit may be recommitted to hear testimony as to a particular fact, but this must be by consent of parties. May v. Corlew, 4 Vt. 12. 176. An auditor's report was recommitted to attach copies of the accounts. This the auditor did, stating the items allowed and disallowed, and corrected an error in computation in his first report, but refused a new hearing upon the whole case ;-Held correct, but, dictum, if important new testimony had been presented, not in the power of the party at the first hearing, it should have been received. Shepard, 5 Vt. 363. Leach v. ject of several actions. A judgment in such action is a prima facie bar to all previous existing accounts; but it does not bar items of account not embraced in the judgment because not then due (McLaughlin v. Hill, 6 Vt. 20); --or because omitted by mistake, or other good cause. Warren v. Newfane, 25 Vt. 250. Stevens v. Damon. VIII. TENDER. 182. In an action of book account brought originally to the county court, a tender made 177. On a case being recommitted to an au- before the commencement of the suit need not ditor he has a discretion, whether to require be pleaded, but may be proved before the auditthe parties to go over anew the whole trial, or or; and if the money tendered be paid to the not, subject to the direction of the county auditor and be by him sent to the court with Mason v. Potter, 26 Vt. 722. his report, it is sufficient. Woodcock v. Clark, court. 178. Mistake suggested. Where parties 18 Vt. 333. adjusted their book accounts and agreed upon 183. In this action before a justice, a failure a balance due, although no settlement was made to produce the tender in court before the jusupon the books, and the accounts were continu- tice is a waiver of it; and to keep the tender ed as before ;-Held, that the auditor in adjust- good on appeal, it must be produced at the ing the subsequent accounts properly refused to hearing before the auditor, and be returned into go back of the settlement, upon the supposition court with his report. Sargent v. Slack, 47 Vt. that there was some mistake in it. The error 674. must be first discovered, and then it may be 184. A tender under the statute, after suit corrected; but this would not open the whole brought, can be made in the book action. Peck settled account for examination. Hodges v. v. Soragan, 27 Vt. 92. 185. A tender in this action first made be- that the damages awarded to the land owner fore the auditor, though the money is left in should be paid or tendered within the ten days his hands, is not effective. Wing v. Hurlburt, named in the statute. Edgecumbe v. Burlington, 46 Vt. 218. 15 Vt. 607. 18 Vt. 336. 186. In an action of book account, the ac- 2. The Act of 1868, No. 91, incorporating the counts between the parties are considered as Green Mount Cemetery Association, authorized entire, and neither can single out a particular the city of Burlington to transfer and convey item and make a valid tender upon it, and to said association the public cemetery in that thereby change the balance; and this is so city known as Green Mount Cemetery, in trust, even as to items accruing after the commence- to support, embellish and manage the same, ment of the suit and before the audit. Pratt and to be thereafter under the control and manv. Gallup, 7 Vt. 344. Wing v. Hurlburt, 15 agement of said association for the purposes aforesaid. Subsequently, the city set out and 187. Where an independent claim is pleaded sequestered certain of the orator's land by way in set-off in an action of book account, a repli- of enlargement of the cemetery, under G. S. c. cation of a tender made before the plea pleaded, though after the commencement of the suit, is sufficient. Hassam v. Hassam, 22 Vt. 516. Vt. 607. 22 Vt. 519. IX. STATUTE OF LIMITATIONS. 188. The statute of limitations, if not insisted upon before the auditors in book account, cannot be urged as an objection to the acceptance of their report. Newell v. Keith, 11 Vt. 214. 18, s. 9, with the view of transferring the cemetery, thus enlarged, to said association in pursuance of the act. The transfer was afterwards so made, and upon the express trust and confidence that the association should, at their own expense, support and manage said cemetery for purposes of a public burial ground only, conformably to all the laws of the State applicable thereto, and to the provisions of the act of 1868, with a provision for surrender and reverter to the city upon breach of the trust in any respect. Held, that such enlargement did not destroy the identity of the cemetery, and that said act authorized the conveyance thereof, as so enlarged, to the association in the manner 1. Where land was set out and sequestered above stated; and that the needful enlargement for the enlargement of public burial grounds, was not rendered unlawful, or ineffective, beunder G. S. c. 18, s. 9;-Held, that it was not cause of the purpose to transfer the cemetery, essential to the validity of the proceedings, after thus enlarged, to the association. 1b. BURIAL GROUNDS. CARRIERS. C. but if they assumed the business of carrying bank bills, they assumed the liability of com 1. Common carrier-His liability. The mon carriers in respect thereto. Farmers' & master of a canal boat on Lake Champlain, car- Mechs'. Bank v. Champ. Tr. Co., 23 Vt. 186. rying goods for hire, is a common carrier, and 3. Common carriers by water are not anliable as such for all losses not occasioned by swerable for damage to goods which is occathe act of God. Spencer v. Daggett, 2 Vt. 92. sioned by the act of Providence; but are bound 2. The charter of the Champlain Transpor- to provide safe and seaworthy vessels, suitable tation Co. extended to the carrying of all goods, to the season and the difficulties of the navigawares and merchandise, “and all other articles tion. Day v. Ridley, 16 Vt. 48. and things usually transported by water," on 4. In an action against a common carrier Lake Champlain. It appearing that, at the for loss of goods, evidence of a departure from time the company took the charter and went the usual course of events, as the non-arrival of into operation, bank bills were usually carried the goods at their place of destination (Brintby water craft upon the lake ;-Held, that their nall v. Sar. & W. R. Co., 32 Vt. 665); an unpowers as a corporation extended to the carry- usual delay in the delivery (Mann v. Birchard, ing of bank bills, but did not necessarily con- 40 Vt. 326); or the landing of the goods out of stitute the company common carriers of bank course (Day v. Ridley, 16 Vt. 48), is sufficient bills so as to compel them to assume the risk of to throw upon the carrier the burden of accountsuch carriage, if they should confine their busi- ing for the loss. Ib. ness to carrying other dissimilar commodities; 5. All common carriers are responsible for |