It appears that the plaintiff declared against the principal debtor upon a promissory note for less than twenty dollars. As between them the suit was not appealable.

It is not perceived how the supplemental process against the trustee could have the effect to change the action or to render it any thing more or less than an action, founded on the principal debtor's note. And whilst it remains such, the right of appeal is expressly taken away by statute.

Whether the trustee has ever a right to claim an appeal for himself in appealable actions, is a question not properly involved in this case, since the present action was not appealable. Suffice it, therefore, to say, that the right to appeal an action from a justice's court is given to a party. And though the trustce is a party in interest to certain proceedings in the cause, the general impression has hitherto been that he was not a party to the action, within this provision of the

statute.

Judgment affirmed.

NOTE. It was several times decided, upon the last circuit, that, under the revised statutes, a person summoned as trustee before a justice of the peace, was not, in any case, entitled to an appeal from the decision of the justice making him chargeable.

To remedy this supposed defect in the law, the legislature, at their session in October, 1842, passed an act authorizing an appeal from the decision of a justice of the peace, adjudging a person trustee, to the county court, under the same regulations prescribed by law in ordinary cases of appeal. See pamphlet laws of 1842, p. 17.

WINDSOR, February, 1842.

Earl

V.

Leland.

ORANGE COUNTY.

MARCH TERM, 1842.

PRESENT, HON. CHARLES K. WILLIAMS, Chief Justice.

A physician cannot recover of a brother of an insane person for medical attendance, &c., rendered the latter, at the request of such brother, unless there was an employment under such circumstances as to show an intention on the part of such brother to pay for the services, and so understood by him and the physician.

Where services are performed at the request of two, and the testimony is equally strong to prove a contract against both as against one, both are liable on such contract, and, in an action on book against one of the promissors, the non-joinder of the other may be taken advantage of before the auditor.

The employment of a physician, and a promise to pay him for his services, made on the Sabbath, is not prohibited by statute.

THIS was an action of book account. Judgment to account having been rendered in the county court, auditors were appointed, who afterwards reported as follows:

'Your auditors find that the services, charged in the plain'tiff's account, were at first entered on small slips of paper 'by the plaintiff for a week or more, and then transferred from said slips by the plaintiff to his regular book, which he 'kept; that said slips were then thrown aside by the plain

tiff, and were lost or destroyed. The defendant objected 'to the plaintiff's book as not containing the original entries, 'but insisted that the first minutes or original entries should 'be produced. This objection your auditors overruled, and 'admitted the book. Your auditors find that the plaintiff is a Thompsonian practitioner of medicine at East Randolph, ' and had there an infirmary, where he received and attended ' upon patients; that the defendant's brother, Charles D. 'Watson, about the 20th of September, 1839, was taken suddenly insane, then being at his father's house, in Wil'liamstown, where he had resided and made it his home 'most of the time for several years, and that the said Charles 'D. was at that time about the age of twenty-six. The de'fendant, with David Watson, father of the defendant and of 'said Charles D., on the 29th of September, 1839, which 'was Sunday, at said David's instance, went with said Charles D. to East Randolph, the said David furnishing 'wagon and horses for the journey, in order to place the 'said Charles D. under the care and medical treatment of 'the plaintiff, at his infirmary; that they stopped at the tay'ern near the plaintiff's establishment, and it was concluded 'between the defendant and the said David that the defend'ant should go to the plaintiff and request plaintiff to come ' and see the said Charles D., in order to determine whether 'plaintiff could help the said Charles D. The defendant 'went and saw the plaintiff and informed him that the said 'Charles D. was sick and crazy. The said David was previ'ously acquainted with plaintiff, but the defendant was not. The defendant, and also the said David, appeared very anx'ious that the plaintiff should take the said Charles D. under 'his charge, and do his best endeavors to cure him; that the 'defendant requested the plaintiff to take the said Charles D. 'to his house, which the plaintiff refused to do, but told the 'defendant to take him there, which the defendant did; and ' after they arrrived there, the defendant, and also the said 'David, renewed their request to the plaintiff that he would 'give his attention to the said Charles D. and exert himself to effect a cure of the malady under which the latter was 'laboring; that no express promise of payment for the plain'tiff's services was made to him by any one; that defendant 'then left the plaintiff's, saying he would call again in a few

ORANGE,

March, 1842. Smith

v.

Watson.

ORANGE, March, 1842.

Smith

v.

Watson.

days, and see how the said Charles D. got along; that the 'defendant did call once while the said Charles D. remained 'at the plaintiff's house; that, at the time the said Charles 'D. was brought to the plaintiff's infirmary, he was wholly 'insane and incapable of taking care of himself; that it took 'two men, frequently three or four, to manage him; that the charges in the plaintiff's account are reasonable for the ser'vices rendered; that after the said Charles D. left plaintiff's 'establishment, the plaintiff sent to Williamstown to inquire, 'and did make inquiry there, if a demand of one or two hundred dollars could be secured against the said David or the said Charles D.; that the plaintiff made his entries originally against the defendant, and him alone, and that 'the services for the care and treatment of the said Charles 'D. while at the plaintiff's, were rendered at the defendant's 'request, but nothing was said expressly between plaintiff ' and defendant about payment; and therefore your auditors 'find that the plaintiff recover of the defendant the sum of 'two hundred and sixty four dollars and twenty five cents as the sum due him from the defendant to balance book ac'counts between them, and his costs.'

The plaintiff's account was dated 1840,' and the services rendered were from September 29, 1839, to February 23, 1840. The county court accepted the report, and rendered a judgment thereon in favor of the plaintiff for the amount found due him by the auditors, and the defendant excepted to the decision.

L. B. Vilas, for defendant.

There is no ground to claim a judgment for the plaintiff except on an original undertaking; and, in order to come to that conclusion, it is necessary that the court should be satisfied that it was the intention of both parties, when the services were rendered, that the defendant should pay for them; or, in other words, that the defendant agreed to pay for the services, and that the plaintiff rendered them in pursuance of that agreement.

The defendant was under no legal obligation to assist his brother. The father was, by law, bound to support him, if he had not estate of his own.

All that the defendant did or said was only as a relative

and friend, assisting his father, and not a word was said by the defendant that he would pay, or any intimation given him by the plaintiff that he should look to him, and long afterwards the plaintiff was inquiring whether a demand could be collected of David or Charles D.

The doctrine that a friend cannot speak to an attending physician, expressing a desire or request that his friend shall be taken good care of, without making him liable for all the services rendered afterwards, is not to be endured. Clark & Meigs v. Waterman, 7 Vt. R. 76.

If the defendant had been to see the plaintiff alone, the complexion of the case would be different. But the father was there, in whose family Charles D. lived, and who had a duty to perform towards his son, and, from the facts found by the auditors, had as much to say and do about the business as the defendant had, to say the least. Why, then, is not the father liable? or, why not liable jointly with the defendant, if there is any liability on him?

The auditors find that whatever was said or done was on Sunday. Now if the defendant was liable on the ground of its being an act of mercy, or necessity, it would seem that he would only bind himself for what was done on the Sabbath.

We believe that judgment should be rendered for the defendant,

1. Because there never was any original undertaking by the defendant.

2. If the court should think otherwise, then we insist that his undertaking was jointly with David Watson.

3. The agreement, if any was made, is void, being done on Sunday,

Wm. Hebard, for plaintiff.

I. It is objected by the defendant that the contract, upon which the plaintiff's right to recover depends, was made on the Sabbath, and therefore void. This is probably all the question in the case that is deserving of serious consideration. The case of Lyon v. Strong is probably the strongest case in support of the objection that will be found; but that case falls very far short of this, when the reasons for the law, and the circumstances of the two cases are taken into consideration. The contract, in the case of Lyon v. Strong,

ORANGE,

March, 1842.

Smith

D.

Watson.