Boyce v. Bolster

Powers, J. The defendant moves to dismiss these exceptions on the ground that the bill was not submitted to him within the time specified in, and as required by County Court Rule 29. It is a matter of regret that the requirements of this rule are too often disregarded; but we deem the whole subject to [42] be one to be considered and dealt with by the presiding judge of the trial court. The rule is a rule of that court. It expressly provides that the times therein limited may be extended by special leave of the presiding judge; and Rule 46 empowers the presiding judge, when it is for him alone to act, to take a case out of the rules entirely. So when a bill is allowed and signed within the time prescribed by law, and the case comes to this Court, we will assume without inquiry that the preliminary steps relative thereto have been regularly taken, or that the case has been properly taken out of the rules by the presiding judge. Subject to the plaintiff’s objection and exception, the defendant’s wife, who had acted as his bookkeeper during the time the items covered by his specification in offset accrued, was allowed to testify concerning such items. Since the trial took place before the passage of No. 60, Acts of 1904, the wife was not a competent witness, Estabrooks v. Prentiss, 34 Vt. 457, and the allowance of her testimony was error, unless the plaintiff waived his objection to her competency, as in Dee v. King, 77 Vt. 230, 59 Atl. 839, or misled the court into the belief that he waived his objection, as in Buchanan v. Cook, 70 Vt. 168, 40 Atl. 102. Before her testimony was received, and during a conference between counsel and court relative thereto, the plaintiff, referring to certain items on the defendant’s specification, said: “These entries of the few little store charges, I said if in her handwriting and she said they were made out at the time, I had no objection to them,-and I haven’t now.” Later in such conference, his counsel claimed and was allowed an exception to the competency of the wife as a witness. In the circumstances, this action on behalf of the plaintiff had the effect of withdrawing any concession which the plaintiff had previously made in [43] that matter, and of giving fair notice to all concerned that he stood on his legal rights regarding the same, and he is not precluded from claiming the benefit of his exception. One of the items on the defendant’s specification in offset was a charge for a load of wood furnished the plaintiff after his partner’s decease and within the six years preceding the commencement of the suit. From the evidence attached to the bill of exceptions, the jury would have been warranted in finding that it was the understanding between the parties that such items were to be applied as payments upon the partnership account. The court, therefore, should have instructed the jury as to the effect which might be given to this item in saving the plaintiff’s account from the statute of limitations, and the omission so to do was error. Judgment reversed and cause remanded.