Amidon v. Aiken
Supreme Court of Vermont
Audita Querela. The complaint alleged that the defendant sued out his writ of attachment against the complainant, returnable before a justice, which was duly served ; that the complainant was taken sick, and was unable to attend the trial before the justice on the return day of said writ; that he appeared by his wife before said justice at the time when said writ was made returnable, and notified the defendant and the justice of the sickness of the complainant, and requested…
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Audita Querela. The complaint alleged that the defendant sued out his writ of attachment against the complainant, returnable before a justice, which was duly served ; that the complainant was taken sick, and was unable to attend the trial before the justice on the return day of said writ; that he appeared by his wife before said justice at the time when said writ was made returnable, and notified the defendant and the justice of the sickness of the complainant, and requested that said trial might be adjourned to a then future time, to enable him to appear and make his defense ; blit that the…
1Opinion of the Court
The opinion of the court was delivered by
Redeield, Ch. J.
No question is made, in the present case, but that if the proof is insufficient to sustain an action, the court were justified in directing the jury to find for the defendant, not* withstanding the plaintiff might have proved, substantially, all which he alleged in his declaration. By the English practice, the plaintiff, in such case, would be entitled to a verdict, and the defendant be left to his motion in arrest of judgment. But in this state, we have regarded it as resting in the discretion of the court, whether to take a verdict…
2Cases cited3 opinions
- Baxter v. Winooski Turnpike Co.Supreme Court of Vermont · 1849
- Dyer v. TiltonSupreme Court of Vermont · 1851
- Sutton v. TyrrellSupreme Court of Vermont · 1838
3Cited by2 opinions
- State v. PerkinsSupreme Court of Vermont · 1914
- Batchelder v. KinneySupreme Court of Vermont · 1871