The opinion of the court was delivered by
Royce, J.In the trial in the county court, the respondent offered to prove that Bailey, the man upon whom he was charged with making the assault for which he was being tried, was a quarrelsome, fractious man, and the proof was excluded. The offer lacked a necessary element to make the evidence admissible, and that was', that the fact was known to the respondent that he offered to prove. In Harrison v. Harrison, 43 Vt. 417, evidence of the same character as that offered here, accompanied with the offer to show knowledge on the part of the defendant of the existence of the facts offered to be shown, was held admissible. The theory upon which such evidence is admitted is, the influence which the knowledge may be supposed to exert upon the conduct of a party in preventing or repelling an assault. Evidence of the fact alone is not available to a party, for without knowledge of its existence, it would have no influence upon his conduct. I think in all the cases where such proof has been admitted, it will be found that it was accompanied with proof of the knowledge of the facts offered to be proved by the party offering it.
The complaint upon which the warrant issued, charged that the respondent was a resident of the town of Ryegate, and that the offence with which he was charged was committed in Ryegate ; and the warrant was made returnable at, and the respondent was tried in, St. Johnsbury. The justice decided to take jurisdiction of the case, and the respondent proceeded with the case, and after the opening argument of the state’s attorney, moved to have the case dismissed, for that the cause ought to be tried in Rye-gate. The justice overruled the motion, and it was renewed in the county court, and there overruled — to which the respondent *82excepted. Sec. 2, ch. 31, of the Gen. Sts., provides that all prosecutions commenced before a justice of the peace, which are within his jurisdiction to try and determine, shall bo tried in the town where the offence was committed or where the respondent resides. The right of the respondent to a trial in Ryegate under the above statute, is clear, and the question is, whether by his conduct he waived that right. The motion was not predicated upon a want of jurisdiction in the court, nor upon its denial to accord to him a trial in Ryegate. If the respondent desired a trial in Ryegate, he should seasonably have demanded it. The right was one which he could waive without affecting the validity of the proceeding. He was notified by the complaint that he was entitled to a trial in Ryegate, and if he claimed to be tried there, he should have made the claim before he was put upon his tidal. The general rule is, that if a party who has ground to move the court to set aside any process or proceeding of any kind, neglects to make his application in a reasonable time after the facts have come to his knowledge, he is deemed to waive the exception by the delay, and will be forever precluded to make the objection afterwards. 1 Tidd Pr. 90, 434, 435; Fox v. Marcy, 1 B. & P. 250, 844; Pearson v. Rawling, 1 East, 77; Argent v. Virant, Ib. 330; State v. Richmond, 26 N. H. 232. The delay of the respondent in claiming the right to be tried in Ryegate, we consider was rightfully treated as a waiver of the right. The other exceptions taken have not been urged in this court, and the judgment is that the respondent takes nothing by his exceptions.