Hickok v. Ridley

15 Vt. 42 | Vt. | 1843

The opinion of the court was delivered by

Bennett, J.

There is no good reason why the charge of forty dollars, cash, should not have been allowed to the plaintiffs by the auditors. It is true the money was advanced to the defendant, under an expectation of the parties that it should go as part pay of transportation, thereafter to be performed, and to be adjusted upon the defendant’s rendering his account for such services. This money was not paid to extinguish a subsisting demand, but was to be kept on foot asa subsisting claim against the defendant, and to be the subject of future adjustment between the parties. It comes within the principle of the cases of Strong v. McConnell, 10 Vt. 231; and Chillis v. Woods, 11 Vt. 468.

If the defendant failed to perform any services, or not sufficient to balance that sum, ft might well constitute a substantive ground of action.

It is also contended in argument, that there is error in the proceedings of the county court in not setting aside the report of the auditors, for the want of notice. The audit was held on the 23d of May. On the 14th of May notice was served on the attorney of record, and on the 16th upon the party himself, by the officer’s leaving a copy in the hands of his wife at his usual place of abode. Though, as the defendant discloses, he left home to go to Boston on the 11th of May, yet he returned on the 22d, the day before the audit. When the continuance was moved before the auditors, it was competent for them to have delayed the hearing, if they had thought proper, upon the representation then made to them. The county court, no doubt, in a proper case, might, in their discretion, see fit to set aside a report of auditors; but this is matter purely in their discretion, and can not be the subject of error. If, however, it was within our revision, there is nothing in the case to show that the. discretion was not properly exercised.

The judgment of the county court is affirmed, with additional costs.