must affirmatively appear that the debtor had no ox-cart or that
he elected the wagon as exempt. Ib.
ATTORNEY'S LIEN. See LIEN 1, 2.
ATTORNEY.
See PRIVILEGED COMMUNICATION 2.
AUDITA QUERELA.
If the defendant in a justice suit is without the state at the time
of the service of the writ, and continues absent until after the
return day, having no notice of the suit, a judgment taken against
him upon the return day by default may be vacated by audita
querela. Sawyer v. Cross & Son, 158.
I. The general rule that in book account interest is chargeable
only on yearly balances may be varied by special agreement.
Willard v. Pinard, 150.
2. A party is not entitled to a jury trial upon the merits in an
action of book account pending in the county court. Hall v.
Armstrong, 421.
3. And this is so although the suit was originally brought be-
fore a justice of the peace, for the appeal vacates the judgment of
the justice and brings the case de novo before the county court. Ib.
4. Article 7, of the amendments to the constitution of the
United States, providing for a trial by jury, refers only to suits
pending in the federal courts.
5. Nor does the fourteenth amendment necessarily secure the
right in all cases to a jury trial, for by "due process of law” is
meant the settled course of judicial procedure as determined by
the law of the State. Ib.
6. The constitution of Vermont, providing that where an issue
of fact is joined in a law court proper for the cognizance of a
jury, the parties have a right to a trial by jury, applies only to
those cases in which a jury trial was in vogue at the time of the
adoption. Ib.
7. In 1786 and 1793 a jury trial was not demandable in an
action of book account. Ib.
BOND. See TRUSTEE PROCESS 1, 2, 3.
BURDEN OF PROOF. See EVIDENCE 13.
State v. Croteau, 23 Vt. 14, and cases following it.
I. Under the circumstances of this case it was not error for the
court, after telling the jury that the respondent was to be pre-
sumed innocent until proved guilty beyond a reasonable doubt,
and that the respondent's omission to testify must not be taken
against him, to further instruct them that they might consider
the fact that the respondent had not offered evidence to contradict
that of the State. State v. O'Grady, 66.
2. The court does not commit legal error by exposing in its
charge the fallacy of a respondent's claims, so long as it does not
limit the fair scope of the testimony, nor withdraw it, or any
proper legal view of it, from the consideration of the jury.
3. Held, that the court sufficiently instructed the jury what,
in view of the evidence, would constitute an insane delusion in
the testator, and what influence such delusion must have had in
the production of the will in order to invalidate it. Manley's
Exr. v. Staples, 370.
4. The use of a single improper expression by the court in its
instructions to the jury is not necessarily error, if the charge taken
as a whole must have given a correct impression. Ib.
5. It is the duty of counsel to call attention to such an inad-
vertence and have it corrected upon the spot. Ib.
6. A case will not be reversed because the court in its
charge incidentally uses an incorrect illustration, where the gen-
eral rule of law has been correctly stated and the jury could not
have been misled in its application to the particular case.
risey v. Hughes, 553.
See NEGLIGENCE 8; ERROR 3, 4, 9, 10.
I. The mortgagee of a stock of lumber, whose mortgage pro-
vides that the specific lumber on hand may be sold, but that the
stock shall be kept good for his benefit, will not hold after ac-
quired lumber as against proceedings in insolvency, unless he has
taken actual possession. Re Allen's Est., 392.
That a subsequent mortgagee of the same stock has taken
possession, of his own motion, but upon the understanding and
expectation that the prior mortgage must be first satisfied, will
not help the prior mortgagee. Ib.
3. Under R. L. s. 2,689, a town clerk may administer the
oath in case of a chattel mortgage which is to be recorded in his
office. Wright v. Taplin & Rowell, 448.
4. An agreement between the parties to a chattel mortgage
that the mortgagor may sell the mortgaged goods in course of
trade and apply the proceeds in liquidation of the debt, does not
per se render the mortgage fraudulent. Bartlett v. Walker
COLLATERAL SECURITY. See NOTES AND BILLS 5, 6, 7.
COMMENCEMENT OF SUIT. See HIGHWAYS AND
BRIDGES 4.
COMMON NUISANCE. See INTOXICATING LIQUOR 6.
1. A commissioner, appointed under No. 16, St. 1886, to su-
perintend the expenditure of State funds appropriated in support
of highways, may recover in his own name a payment made under
a mistake of fact for materials used. Varnum v. Highgate, 416.
See TRUSTEE PROCESS 1, 3.
See FISH WARDEN 1, 2; GRAND JUROR 1.
See MARRIAGE and Divorce 3, 4, 5.
CONSIDERATION.
I. A subsequent promise by the grantee to pay the grantor the
value of said building would be void as without consideration, for
the building already belonged to the grantee. Re Estate of Per-
kins, 313.
2. A defendant is not bound by his promise to pay the balance
claimed to be due upon a note, which has in fact been paid, if
the plaintiff would withdraw it from the hands of an attorney with
whom he had placed it for collection. The promise is without
consideration. Lyon v. Witters, 396.
3. H. & M., being insolvent, executed a mortgage of their
entire property to defendant, which recited that the mortgagors
owed certain debts which the defendant had assumed and agreed
to pay, and was conditioned to indemnify the defendant against
all loss in that respect. Held,
(a) That the mortgage was a good consideration for a prom-
ise by the defendant to pay the plaintiffs one of the debts of H. &
M. to them.
(b) That it was immaterial whether the entire property mort-
gaged was sufficient to pay the entire indebtedness of H. & M.
(c) That the promise was an independent promise and not
within the statute of frauds.
(d) That an intention upon the part of the defendant not to
bind himself beyond the value of the property would not affect
the plaintiffs unless communicated to them. Keys & Co. v. Allen
& Maynard, 667.
See PAUPER I; PLEADING 7.
I. If a first constable neglects for ten days after request by the
selectmen to furnish an official bond pursuant to R. L. 2,674, the
supreme court will render judgment of ouster against him upon
information for quo warranto. State ex rel v. Buchanan, 445.
In computing the ten days the day of the request should be
excluded. Ib.
3. The delivery of such a bond to the town clerk is a good de-
livery to the town. Ib.
That statute is not unconstitutional as an ex post facto law.
State v. Welch, 50.
See INTOXICATING LIQUOR 5; BOOK ACCOUNT 4, 5, 6.
CONSTRUCTION OF REPORT.
Held, that the referee's report found that the plaintiff's colt
escaped over that portion of the fence which it was the duty of
the defendant to keep in repair. Wilder v. Stanley, 45.
CONTRIBUTORY NEGLIGENCE.
I. The question of contributory negligence should not be
withdrawn from the jury so long as there is any rational doubt
not only as to the facts, but also as to the inference to be deduced
from the facts. Germond's Admr. v. Cent. Vt. Rd. Co., 126.
2. Held, that the evidence of the plaintiff tended to prove such
a combination of circumstances as required the submission of the
case to the jury. Ib.
See NEGLIGENCE 4, 9; MASTER AND SERVANT 2, 3, 4.
I. Such an agreement is not void as against public policy.
Barrett v. Carden, 431.
2. The plaintiff contracted with the intestate to board the ille-
gitimate daughter of the intestate, there being no specification as
to the duration of service or time of payment. Under this con-
tract the plaintiff took the daughter into his family at five years of
age and kept her until she was twenty-one years of age, during
which time the intestate made but seven small payments, and the
plaintiff never made any demand for payment. Held,
(a) That the plaintiff could recover for board after the daugh-
ter became of age as well as before.
(b) That interest should be computed from the end of each
year. Yearteau v. Bacon's Est., 576.
See CONSIDERATION; MISTAKE 1, 2; IMPLIED PROMISE I, 2;
PAUPER I.
Neither party having entirely prevailed in supreme court,
no costs are awarded in that court. Smith v. Pierce, Admr., 200.
2. No exception having been taken to the action of the county
court in not restricting costs, that question will not be considered
in the supreme court. Collins v. St. Peters, 618.
3. Costs below denied the defendants because they were main-
ly responsible for the litigation. Town of Westminster v. Wil-
lard et al., 266.
See TRUSTEE PROCESS 11, 12.
I. The county court may, upon motion, strike off a judgment
by default during the term at which it is rendered. R. L. s.
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