Burlington free press. [volume] (Burlington, Vt.) 1827-1865, 1855-01-19
'rRIF FIFTH


January -, 1855.
Ihis Court completed it. business and rose on tho
9TH int. very largo docket Of cases was mainly
disposed Of The heard at this term were pro.
baby. taken together more important than any
equal number Of caecs ever before brought before
the Court.
The learned and impcr,isl decisions of the Judge
show that in Vermont the system of annual election.
in the judiciary deps rtmont, is still safe one in
practice, whatever may be 'aid in respect TO the
i''9ry OF such. a system, unj rhatc' may he its
practical evils, elsewhere.
The following arc abstracts Of such If tho decis-
'ion' at this term, a are ofinterest.
IN writing with the Doftndants. to fni,h a store.
house for them at E,se4, y. V. at certain prices,
aud according to schedule annexed TO the con.
tract Th" schedule contained the follow ing clause
Partitions and Turing for the whole house, SIS
Tho Plaintiff claimed as ,rtra an item for Turing
the inner walls of the house, and tho Court below
ADMITTED parol evidence to prove that at the time Of
Mdhlhg the contract the parties did not intend to
have these walls furrel, that there yas other fur
ring to be done to which the contract mi,bt sr,,Iv
tlat after the contract pa.tnad. il WA discovered
tna' the uneven state Of the walls rendered the
t.
Ell the plaintiff 10 do thi, Turing and on this
evidence the Court below left it to the Jury to saw
whether the Turing in question included in the
contract or not. Held by REDfIELn Chief Justice
reversing the judgment below that rs tho term. of
the contract were explicit, parol evidence was not
admissible to vary the effect Of this clause in the
cont act and as this Turing wa, necessary md
proper to be done, at the time Of making the CON-
tract IT could not be recovered for extra without
a subsequent contract.
W W Peck for the Plaintiff Geo f. Edmunds.
for the Defendants
W =. Br'gsS . di,a,on s. WbtcoptB. Petition
Tor Lew trial. on the ground Of surprise and newly
discovered evidence. The Defendant. were sum.
moned in the Court below as the trustees of one
Chandler, at the suit Of this plaintiff. Before the
tiiai below, the trustees had taken and 1led the
"a Pdrs deposition of said Chandler and the plaintiff
had hercuPon taken another deposition Of said
Chandler contrndicting his first Deposition and PROV
ing tmi the trustees were chargeabe. The trustees
al the trial declined to introduce thi. depo,ition
and the Court excluded that taken by the Plaintiff,
on the ground Of interest in the witness; and the
Jury found verdict for the trustees The Plaintiff
alter the trial discovered new evidence OF the de-
~
we're eharsesble, but of n siInnr character to that
produced at the trial. The plaintiff thcreupon NOV.
e. Tor ne" trial in the Court below upon the same
grounds relied upon in their petition The Court
below o'erruled the notion and afterwards and out
oi term, caused an entry to be made on the docket
thattho motion was overrulcd without prejudice .,
Rtd pr BENNETT, Judge, that the election Of tho
deposition could not be regarded rs legal slrnri.e
Hpon the Plaintiff the trustees we're not bound 10
Introduce their deposition, and that il il were n
SiPriso, the plaintiff could not lie by, and speculate
upon the chances Of verdict in his favor and fail.
ing IN that, set up this surprise ground Of new
maj that new tIid ~il not be granted on newly
uncovered evidence unless 1t plainly appears that
''jus'ee ha' oeen done, and that the new evidence
VIII IN all probability change the result upon ano,b.
Ct 'al that the decision below against the Motion
would have been bar had it not be en- made without
P'ludioe, and that, ss it was, it had great weight
with tho Court in exercising tboir di,crstior
|1f'', car petition for new trial be applieJ IA p,o
oevdins' again,t trustees Petition dismissed With
costs
" P Brisss snl Nm. Weston, for petitione,
"S'nard and Geo !. Edmurds, for defendants
L0PHlT bugs Debt for money had and re-
eSi'ed' The plaintiff filed specification claiming
on IN sttosted motto executed to him by the defend
ant o'n''V with other persons, The pleadings were
very volumnious. Heid per REpPIgLp, Chief Ju.t;ce
reversing tho Judgment below that in order TO
have the statute of limitation respecting att.std
cutcs, apply, tho action must be brought pp,,e ~,
1ns that tho specification was no part Of the de-
clsrstion iur the purposes of pleading that this
Nss uot an action on the note, and tbsresore tho