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(107 A.)

paid."

that any of those balances were the result of ground of any other debt falling due and not a settlement, nor does the referee find that any demand of payment was ever made by either party in whose favor it was found, nor that any agreement to pay interest was ever made by either party.

[1] It may now be regarded as settled law in this state that in case of ordinary running accounts on book, not controlled by special contract, expressed or implied, and unaffected by any special circumstances, requiring the case to be made an exception to the rule, interest is to be computed by making annual rests and allowing interest thereafter on the balance in favor of the party to whom it may be due. Langdon v. Caselton, 30 Vt. 285; Goodnow v. Parsons, 36 Vt. 46; Gordon v. Mead, 81 Vt. 36, 69 Atl. 134; Holt v. Howard, 77 Vt. 49, 58 Atl. 797; Hammond's Adm'r v. Hammond, 76 Vt. 437, 58 Atl. 724; Yearteau v. Bacon's Estate, 65 Vt. 516, 27 Atl. 198; Flannery v. Flannery, 58 Vt. 576, 5 Atl. 507; Davis v. Smith, 48 Vt. 52; Willard v. Pinard, 65 Vt. 160, 164, 26 Atl. 67. It is held in Gordon v. Mead, supra, that the general rule that in cases of ordinary running book accounts, not controlled by special contract, expressed or implied, and unaffected by exceptional circumstances, interest should be computed by making annual rests and allowing simple interest on the

annual balances.

In other words, in the absence of any agreement, expressed or implied, ordinary running accounts fall due annually, and, like other debts, bear interest after falling due, unless otherwise provided by agreement express or implied.

In Goodnow v. Parsons, supra, this court said:

"It is settled in this state that in cases of

ordinary running accounts on books not controlled as to interest by a different contract, exis to make annual rests and to allow interest press or implied, the rule of computing interest thereafter on the balance in favor of the party to whom it may be due. A person dealing with another has a right to rely upon the application of this rule on the settlement of his account, unless the circumstances of the case are such as to affect him with notice or knowledge of the usage, custom, or claim of his creditor to comthan one year; and the defendant's dealings pute interest by making rests at shorter periods with the plaintiff must be taken to have been had with the expectation that they would be adjusted according to the settled rule and cus tom, unless it is made to appear that he had information that the plaintiff would insist upon a different rule."

[2] The referee has found no fact from which it can be inferred that there was any agreement, express or implied, taking the

In Willard v. Pinard, supra, the court case out of the general rule. The claim of said:

"On book accounts, when no other understanding or agreement is shown, interest is allowed only on the yearly balances."

The rule as adopted in this state is well stated in Langdon v. Caselton, supra, as follows:

the plaintiff that John struck the balances as he did and brought them down without including interest in them raises an implied promise that he would not charge in. terest on those balances, or indicates that it was the understanding of John that no interest was to be computed or charged on his account, and that the plaintiff had a right to so understand it, is not well founded. this was done to keep in touch with the genThat act is consistent with the theory that eral standing of the parties to the account along as their business and dealings progressed, and not for the purpose of fixing the exact sum due either party.

"It seems now to be established in this state that in cases of ordinary running accounts on book, where there is no special agreement as to the time of payment or the payment of interest, and no particular course of dealing between the parties, from which any special contract could be implied, either party is entitled to call upon the other for settlement of accounts annually, and for payment of any balance that may be due him from the other on such settle-with the well-established rule recognized by ment. On the basis of this understanding it is this court, and that there was no error in also settled that, if the party from whom the the judgment of the trial court. balance is due neglects to settle and pay such balance, it shall stand as to interest, on the

We think the computations on the basis of annual rests was correct and in accordance

Judgment affirmed. Let the case be certified back to the probate court.

(93 Vt. 304)

Ex parte DEXTER. (No. 145.)

judgment, includes an exception allowed amounting to an implied ruling that the repetition by defendant's counsel of a question theretofore ex

(Supreme Court of Vermont. Orange. May 8, cluded by the court was legally proper, being

1919.)

1. HABEAS CORPUS 30(1)—CORRECTION OF ERRORS.

The writ of habeas corpus cannot be given the effect of a writ for correction of errors or irregularities.

tantamount to an express ruling thereon against the state.

8. HABEAS CORPUS 33-DENIAL OF BAIL. Where one acquitted of murder was at large on bail, and upon reversal of the case by the Supreme Court the county court denied bail as a matter of law, such ruling cannot be reviewed DICTION LIMITATION OF STATE'S EXCEP-in habeas corpus proceedings.

2. CRIMINAL LAW

TIONS.

1018-APPELLATE JURIS

The Supreme Court has general and plenary jurisdiction as a court of error, with full power to try and determine questions brought before it "pursuant to law" (G. L. 1578), and its jurisdiction is in no way modified or controlled by section 2598 limiting the state's exceptions in criminal cases to "questions of law decided against the state," and the objection that an exception was allowed without right does not go to the court's jurisdiction.

3. HABEAS CORPUS 27-JURISDICTION.

Where an exception was not challenged upon appeal of the criminal action against petitioner as one not permitted to the state, under G. L. 2598, but was argued on the merits by both sides, the Supreme Court took jurisdiction by hearing and deciding the question, which jurisdiction will be presumed, and is not open to collateral attack in habeas corpus proceedings. 4. COURTS 39-JUDGMENT 497(1)—STATUTES 236-COURT OF LAST RESORT-ExCLUSIVE JUDGE OF ITS OWN JURISDICTION.

A court of last resort must be the exclusive judge of its own jurisdiction, and its judgment | is never void, but regular for every purpose, until set aside by it in a proper proceeding for that purpose.

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1005-STATUTES-"REMEDIAL STATUTE" ALLOWING STATE EXCEPTIONS CONSTRUCTION.

A remedial statute is one designed to cure a mischief or remedy a defect in existing laws, and G. L. 2598, allowing the state exceptions in criminal cases, is remedial, and should be construed liberally, within its language and commensurate with its purpose.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Remedial Statute.]

9. HABEAS CORPUS 110- ADMISSION TO BAIL-MURDER-RIGHT TO COURT'S DISCRE

TION.

and G. L. 2236, relating to habeas corpus, one In view of Const. c. 2, § 32, relating to bail, acquitted of murder, and at large on bail pending state's appeal upon reversal, was not accorded the county court's discretion as to bail, where it was decided as a matter of law, and will be admitted to bail.

Original petition to the Supreme Court for writ of habeas corpus by Anna Felch Dexter to secure her release from custody. Prisoner admitted to bail.

The relator's petition, after setting forth that she is the identical person named and designated as Anna Felch in the indictment in the cause entitled State of Vermont v. Anna Felch (decided by the Supreme Court and reported in 93 Vt. - 105 Atl. 23), in which she was acquitted at the June term, 1917, of Orange county court, and released from custody and allowed to go at large upon her own recognizance in the sum of $1,000, and that later the Supreme Court, at its November term, 1918, sustained the exceptions taken by the state at the trial and remanded the case for retrial, alleges:

"(4) That at a term of said Orange county Tuesday of December, 1918, the relator, being court begun and held at Chelsea on the first theretofore advised that she was required to appear at said time and place, did then and there personally appear, and made and filed the following motions: (1) Motion to discharge respondent; (2) motion for judgment on the verdict of not guilty, rendered at the June term, 1917; and (3) motion to admit to bail; that said county court denied each of said motions, as a matter of law, to which the relator then and there excepted; that said exceptions were then and there allowed, and ordered to lie without prejudice to the respondent's right to have the same passed to the Supreme Court thereon, as well as on exceptions taken by said respondent at any subsequent stage of said cause.

"(5) That the relator was then and there ordered into the custody of the sheriff of said 7. CRIMINAL LAW 1024(1) EXCEPTIONS county of Orange by said county court, and the BY STATE.

G. L. 2598, permitting the state to take exceptions in criminal actions to "questions of law decided against the state," and providing that the trial court may, in its discretion, pass the same to the Supreme Court before final

clerk thereof was by said county court then and there directed to issue a warrant for the commitment of the relator to the keeper of the county jail at Chelsea aforesaid; that said clerk then and there issued said warrant, and the relator was, then and there, to wit, on the

(107 A.)

3d day of December, 1918, committed to the | risdiction to remand the cause, and that all keeper of said county jail, within the said jail, proceedings thereafterward had and taken in pursuant to said warrant, where she now is and said cause were without authority of law; that ever has been since said 3d day of December, the county court could not thereafterward take 1918; and a copy of said warrant, with the jurisdiction of said cause; that the order of officer's return thereon, is hereto annexed. said county court directing the issue of the warrant upon which the relator was committed, and under which she is now restrained and imprisoned, was made without authority of law; and that her restraint and imprisonment thereunder are without authority of law.

"(6) That the relator is now restrained and imprisoned by George A. Tracy, of said Chelsea, in the county jail at said Chelsea (he being the keeper thereof), without authority of law; that said restraint and imprisonment are by virtue of the warrant specified in the preceding paragraph; that the relator is informed and believes, and therefore avers, that said warrant was issued without authority of law, and that said county court was without jurisdiction to direct the issue thereof; and, on like information and belief, the relator avers the following facts in support of her contention that such restraint and imprisonment are without authority of law: (a) That said cause was passed to the Supreme Court, on exceptions taken and allowed in behalf of the state, under the provisions of section 1 of the Acts of 1912, now G. L. 2598; that in and by said statute the state's right to such exceptions is limited to 'questions of law decided against the state,' and that the jurisdiction of the Supreme Court is limited to the determination of such questions. (b) That, in the opinion of the Supreme Court in the case of the state against the relator (105 Atl. 23), but two of the state's exceptions were sustained; that the first exception so sustained related to the exclusion of the question asked the witness L. T. Welch as to the expression of the respondent's face and eyes; that the Supreme Court, while holding that such exclusion was error, uses the following language (105 Atl. p. 27): 'Without saying that it was of sufficient importance to require a reversal, we hold that it was error to exclude the offered evidence;' and the relator submits that such language implies that, if there had been no error other than this, said cause would not have been remanded for retrial. (c) That, if the relator's construction of the opinion is correct, the only exception of the state on which such remand was predicated related to the asking by respondent's counsel of the witness Otis Williams of a question that had previously been excluded by the trial court; that the transcript of the evidence in said cause

shows that the trial court excluded such question on the ground that it had already been ruled upon; that thereupon the state asked for an exception to the propounding of such question, to which the court responded, 'If the state is entitled to it he shall have it;' that the action of the trial court on these exceptions did not involve a decision of questions of law against the state; that no such questions of law were in fact decided against the state; that the decision of the trial court, so far as questions of law were concerned, was for and not against the state; wherefore, if the statute herein before referred to prescribes and limits the jurisdiction of the Supreme Court to pass upon questions raised by exceptions taken by the state, the relator submits that the Supreme Court was without jurisdiction to determine the question presented by this particular exception. (d) That the relator is informed and believes, and therefore avers, that if such remand was predicated solely on the exception specified in the preceding paragraph, the Supreme Court was without ju

"(7) That the relator is now restrained and imprisoned, as aforesaid, for the purpose of holding her to answer on the indictment specified in paragraph 2 of this petition; and she submits that such restraint, imprisonment, and holding are contrary to the true intent and meaning of section 2491 of the General Laws of Vermont, and therefore without authority of law; and she further submits, in view of said statute, that such restraint, imprisonment, and holding are contrary to the tenth article of chapter 1 of the Constitution of Vermont, in that she is deprived of her liberty contrary to the laws of the land.

"(8) That the relator is informed and believes, and therefore avers, that the Orange county court, at the December term, 1918, was without jurisdiction and authority to deny, as a matter of law, her motion to be admitted to bail, and to direct the issue of a warrant for her commitment predicated on such denial, in manner and form as set forth in paragraph 4 of this petition.

"(9) That the relator is informed and believes, and therefore avers, that she is now unlawfully restrained, imprisoned, and held, as aforesaid: (a) For that, under the Fourteenth Amendment of the Constitution of the United States, the relator cannot again be lawfully tried on said indictment, after such verdict of not guilty, in that such retrial would abridge her privileges and immunities as a citizen of the United States, and would deny to her such due process of law and such equal protection of the laws as are secured and guaranteed to her in and by said Fourteenth Amendment; and (b) For that such restraint, imprisonment, and holding of the relator for the purpose of requiring her furverdict of not guilty, are contrary to said Fourther to answer on said indictment, after such teenth Amendment, in that she is thereby deprived of her liberty without due process of

law."

Argued before WATSON, C. J., and POWERS, TAYLOR, and MILES, JJ., and FISH, Superior Judge.

Richard A. Hoar and Alland G. Fay, both of Barre, and Hale K. Darling, of Chelsea,

for relator.

Frank C. Archibald, Atty. Gen., and John C. Sherburne, State's Atty., of Randolph, for the State.

MILES, J. The relator was acquitted by a jury on the charge of murder, and the case was brought to this court on exceptions by the state before judgment, pursuant After a full hearing certo G. L. 2598. tain of the exceptions were sustained, the verdict was set aside, and the cause remand

ed for a new trial. Error was found in the [ and, if an exception is taken and allowed exclusion of certain evidence, and in the without right, it would be a fatal objection conduct of respondent's counsel in repeating a question after the same had been excluded by the court. It was not found necessary to decide whether the former error was sufficiently harmful to require a reversal, as it was found that the latter clearly constituted harmful and reversible error. See State v. Felch, 93 Vt. 105 Atl. 23.

to the exception, if properly raised and presented in this court. But the objection does not go to the court's jurisdiction. If the question is brought up on a proper bill of exception, viz., "pursuant to law," the court has jurisdiction to decide the merits of the exception. Manifestly, it would have authority to overrule the exception; and by the same token, if it erroneously sustained the exception, it would not act without jurisdiction.

[3, 4] In State v. Felch the jurisdiction of this court was invoked in a legal manner. Confessedly certain of the questions raised by the state's exceptions were brought be fore the court "pursuant to law." Though

The relator's argument in support of the complaint assumes that the only error on which the reversal can be predicated relates to the conduct of her counsel at the trial. Her claim is that this court did not have jurisdiction to order the remand, for that by G. L. 2598, it can hear and determine only questions of law decided against the state by the trial court; and that the excep- | the validity of the verdict was challenged on tion on which the case was reversed was not within the purview of the statute, as it was not to the decision of the court, but to the conduct of counsel. Granting for the sake of the argument, though by no means conceding, that the sole basis of the reversal was as the relator assumes, we come to the consideration of the various claims advanced by the relator why her complaint should be sustained.

[1] Relator's counsel recognize the limitations of these proceedings (as to which see In re Turner, 92 Vt. 211, 215, 102 Atl. 943), and rely solely upon the claim that this court was without jurisdiction in State v. Felch to render judgment setting the verdict aside and remanding the cause for a new trial on the exception to the conduct of counsel. But this proceeding calls that judgment in question collaterally, and it is well settled that the writ of habeas corpus cannot be given the effect of a writ for the correction of errors or irregularities. In re Turner, 92 Vt. 211, 215, 102 Atl. 943; In re Fitton, 68 Vt. 297, 300, 35 Atl. 319. Manifestly the judgment of a court of last resort cannot be attacked by this writ, for a single justice of this court, the county court, or a superior judge are given jurisdiction of the writ; and, if open to such attack, we would have the absurdity of an inferior court sitting in review of the judgment of a court of last resort. It belongs exclusively to this court to examine into and decide upon the regularity of its own proceedings, which it will always do on proper application. See Walbridge v. Hall, 3 Vt. 114.

[2] The relator's claim that the jurisdiction of this court is not general, but special and limited, cannot be sustained. It has plenary jurisdiction as a court of error when its jurisdiction is properly invoked, with full power to try and determine questions brought before it "pursuant to law." G. L. 1578. Its jurisdiction is in no way modified or controlled by anything contained in G. L. 2598. That statute prescribes in

several grounds, the subject-matter of the proceeding in error was single and entire, viz. the verdict which it was sought to set aside. See Kramer v. Toledo, etc., R. R. Co., 53 Ohio St. 436, 42 N. E. 252. No question was then made that the exception now challenged was not properly before the court for consideration equally with the others; indeed, it was argued by both sides. By hearing and deciding the question thus presented, the court took jurisdiction of it. Jurisdiction thus assumed will be presumed and is not open to collateral attack. Necessarily the court of last resort must be the exclusive judge of its own jurisdiction. 15 C. J. 1026, § 445. The judgment of such a court is never void, but is regular for every purpose until set aside by it in some proper proceeding for that purpose. Walbridge v. Hall, supra. It was held in Hathaway v. Holmes, 1 Vt. 405, 418, that the judgment of a court of record, acting within its jurisdiction, is conclusive until set aside by error or other proper proceeding; and it cannot be vacated, nor its merits examined into, on habeas corpus.

[5, 6] Nor can we agree with the relator's contention that the point on which the case was reversed did not involve a ruling of law against the state. This depends upon the construction to be given the statute. It is urged on the one hand that the statute is in derogation of the common law, and should be construed strictly, while on the other hand it is said that it is remedial, and so entitled to a liberal construction.

It is an established principle that the rules of the common law are not to be changed by doubtful implications, nor overturned except by clear and unambiguous language (State v. Shaw, 73 Vt. 149, 171, 50 Atl. 863); and the rule is equally well established that remedial statutes are to be construed liberally to effectuate their purpose. State v. C. V. Ry. Co., 81 Vt. 459, 71 Atl. 193, 21 L. R. A. (N. S.) 949. The relator takes the anomalous position that, if the

(107 A.)

Atl. 987; State v. Shaw, 89 Vt. 121, 94 Atl. 434, L. R. A. 1915F, 1087; Green v. Laclair, 89 Vt. 346, 95 Atl. 499; Fadden v. McKinney, 87 Vt. 316, 89 Atl. 351; Citizens' Savings Bank v. Fitchburg Fire Ins. Co., 86 Vt. 267, 84 Atl. 970; Davis v. Randall, 85 Vt. 70, 81 Atl. 250; Fowlie's Adm'r, v. McDonald, Cutler & Co., 85 Vt. 438, 82 Atl. 677; Cunningham v. Bradford Agr. & Trot. Ass'n, 84 Vt. 35, 77 Atl. 913; Herrick v. Town of Holland, 83 Vt. 502, 77 Atl. 6; McDuffee's Adm'r v. B. & M. R. R., 81 Vt. 52, 69 Atl. 124, 130 Am. St. Rep. 1019; Douglas v. Carr, 80 Vt. 392, 67 Atl. 1089; Sears v. Duling, 79 Vt. 334, 65 Atl. 90; Magoon v. B. & M. R. R., 67 Vt. 177, 31 Atl. 156; Cutler & Martin v. Skeels, 69 Vt. 154, 37 Atl. 228; Smith Woolen Mch. Co. v. Holden, 73 Vt. 396, 51 Atl. 2. Rudd v. Rounds, 64 Vt. 432, 25 Atl. 438, cited in State v. Felch, is full authority for applying the rule to the misconduct of counsel in the latter case. It comes to this: The allowance of the exception in question amounted to an implied ruling that the repetition of the question was legally proper, and was tantamount to an express ruling to that effect.

rule), nevertheless it is to be strictly con- [ application Russ v. Good, 90 Vt. 236, 97 strued because it is in derogation of the common law. But rightly understood, there is no conflict between these rules of construction. A remedial statute asserted as modifying the rule of the common law must receive a strict construction on the question whether it does modify it; but if found, when so regarded, that it was intended to replace a common-law rule, in whole or in part, it must be given the same effect by liberal construction as it would otherwise have. See Archer v. Equit. Life Assur. Ass'n, 218 N. Y. 18, 112 N. E. 433. That the statute in question modifies the common law will at once be conceded, and that it is remedial in character is quite apparent. A remedial statute is one designed to cure a mischief or remedy a defect in existing laws (City of Montpelier v. Senter, 72 Vt. 112, 114, 47 Atl. 392); and a statute for the correction of errors is of this character (White County v. Key, 30 Ark. 603; 36 Cyc. 1173). Plainly enough the Legislature acted upon the belief that the rule of the common law which denied the state exceptions in criminal cases was mischievous-was a defect in criminal procedure for which a remedy was demanded. It follows that the construction of the statute should be liberal, and, within its language, commensurate with its purpose.

[7] The section in question, in substance, provides that questions of law decided against the state by this court in criminal trials shall, upon exceptions taken by the state, be allowed and placed upon the record before final judgment; that when so taken and allowed the trial court may, in its discretion, pass the same to this court before final judgment; and that this court shall hear and determine the questions raised upon such exceptions, and render final judgment thereon, or remand the case for further trial or other proceedings as justice and the state of the case may require.

In construing the statute in case of State v. Felch, we took occasion to say that the Legislature intended to provide a right of exception to the state equal in all respects to that possessed by the respondent; and held that the terms of the statute, rightly understood, authorize exceptions by the state reserving all questions arising during the course of the trial, Such being the purpose of the statute, it is evident that questions of law decided against the state are not confined to express decisions of this character, but may be either express or implied. Such is the interpretation given to the statute providing for review of trial errors on exception in civil cases and on exceptions by the respondent in criminal trials. This question has frequently arisen on exceptions to misconduct of counsel in argument. The following comparatively recent cases sufficiently illustrate the rule and its

[8, 9] The complaint, then, is not sustained. But it does not follow that the relator is to be remanded to her former custody. By the express provisions of G. L. 2236, the question of admitting her to bail necessarily arises. This question, therefore, remains for consideration.

The record shows that, on the remand of the case against her from this court for a new trial, she (then being on bail) appeared before the county court; whereupon she was by that court ordered into the custody of the sheriff of the county, and the clerk thereof was ordered to issue a warrant for her commitment to the keeper of the county jail; that such warrant was issued, and pursuant thereto she was committed to jail on December 3, 1918, and hitherto has been therein confined by virtue of said warrant. The order for her commitment being thus made, she filed a motion in that court, among other things, for admission to bail. This motion was denied as matter of law, to which the relator excepted, and the exception was ordered to lie. It hardly need be stated that we cannot review that ruling in these proceedings, but reference may properly be made thereto as showing the circumstances surrounding her at the time of bringing her complaint.

The Constitution of the state (chapter 2, § 32) provides that "all prisoners, unless in execution, or committed for capital offences, when the proof is evident or presumption great, shall be bailable by sufficient sureties." And the statute relating to habeas corpus (G. L. 2236) provides that, if the prisoner is detained for a bailable cause or offense, the court or magistrate before whom the pro

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