54 Vt. 517 | Vt. | 1881
The opinion of the court was delivered by
I. The defendants were properly excluded, by the' referee, as witnesses to what occurred before the appointment of the plaintiff as administrator, except to explain facts and circumstances which took place after the death of the intestate. They are expressly disqualified by Sec. 1003, R. L. Fitzsimons v. Southwick, 38 Vt. 509; Walker v. Taylor, 43 Vt. 612; French v. Barron et al, 49 Vt. 471; Roberts v. Lund, 45 Vt. 82. The case does not fall within the principles of sec. 1002 R. L., on which the defendants’ counsel have based their argument on this exception.
II. The defendants contend that the referee erred in admitting the testimony of E. P. Mudgett and of Dr. J. B. Jordan, which was objected to. It does not appear whether these witnesses were professional experts on the subject in regard to which they were inquired of. It is to be presumed that they were such experts so long as nothing is shown to the contrary. It is incumbent upon the excepting party to have every fact appear, necessary to show
III. The granting or refusing a certificate that the cause of action arose, from th& wilful or malicious act or neglect of the .defendants in actions of tort is largely a matter of fact to be determined by the County Court, and so far as the decision of that court is based upon its finding such facts as are necessary to support the certificate, it is not revisable in this court. Robinson v. Wilson, 22 Vt. 35; Soule v. Austin, 35 Vt. 515; Whiting v. Dow, 42 Yt. 262.
The action is one in which a certificate could properly be granted. The facts found by the referee are such that no error in granting the certificate appears affirmatively. It is not stated that the County Court granted the certificate wholly upon the facts reported by the referee. It might have investigated this subject on evidence independent of that used before the referee. The motion for the certificate was addressed to the court to be determined on such evidence as might be adduced. The question is not whether the different members of this court would have found the necessary facts to uphold granting the certificate. It is rather, does error appear affirmatively in the action of the County Court in this particular? We think it does not.
This disposes of all the exceptions now relied upon by the defendants.
The judgment of the County Court is affirmed.