Jacob Putnam vs. Nehemiah Dutton, 8 Vt. 396

The opinion of the court was delivered by Remfield, J. It is first objected that the report does not show any sale of the brick charged by plaintiff. But on examining the report, it does appear that a sale and delivery of the brick was made by plaintiff to a lad living with defendant, claiming to act as his agent, and that defendant ascquiesced in the contract, and took and used them. It was agreed that defendant should execute his note for the price at the time of delivery; but be omitting to do that, the plaintiff might well charge them on book.

As the right of action accrued more than six years before the commencement of the suit, it is insisted the action is barred by the statute of limitations. But the auditor fincfe a new promise in express terms, and within three years. This, or indeed a new item of credit, is sufficient to remove the operation of the statute of limitations. • It seems that in the court below, it was attempted to show' that these facts were found by the auditor upon very unsatisfactory testimony.

But unless the county court found the fact that the auditor proceeded to state facts upon incompetent evidence, or without evidence, and still accepted the report, it is hot the subject of error. If any question is to be made as to the competency of testimony, the auditor must be requested to report the facts necessary to raise the question : if he refuse, the count}' court will hear affidavits. But this court can never review their decision except as to questions of law arising on the report and bill of exceptions. The same is true of the refusal of the auditor to grant a continuance on motion of defendant.

This was a matter of discretion with the auditor, and unless he was guilty of such abuse as to amount to corruption, his decision cannot be revised; and in that case, the revision must be in the county court. The only remaining exception of any importance is, that the auditor does not appear by the report to have been sworn. It is true that the statute requires the auditor should be sworn; and if he proceeds without being sworn, and this is made to appear in the proper mode, the report could not be accepted.

But this should be made to appear by proper evidence adduced before the court be-]ow. jt ¡s not required that the auditor should report the fact of his being sworn, nor is this properly within his province. The oath is administered out of court, by another officer, and is strictly a matter in pais, and not expected to appear of record. If it appear,, it should be by the certificate of the officer administering the oath. But we think it may well be presumed under the general inference of omnia rite acta, as we presume the clerk of our court and the sheriff and his officers have been sworn.

At any rate, as the county court expressly find the fact that the auditor was sworn, it can-not be assigned for error that the fact is not stated in the report. The result is, that Judgment is affirmed.