47 Vt. 320 | Vt. | 1875
The opinion of the court was delivered by
To entitle the petitioners to the relief prayed for in this petition, it is incumbent on them to show, not only that the evidence they ask an opportunity to use, would be material, and would probably change the result, substantially, but also that it was not discovered by them before the former trial, and could not have been by the use of reasonable diligence.
The evidence they wish to use is the testimony of James Curtis, Anna Curtis his wife, and Thomas Lynch his servant; and they wish to use it to show that the damages sustained by the petitionee, were not so great as he claimed and recovered for in the former proceeding. That claim was for the loss of sheep consigned by the petitionee to James Curtis, at Manchester, N. H., in
It is not shown or claimed but that Lynch has all the while been where his testimony could have been had. No application to Mrs. Lynch to find out where her husband was, or what could be proved by her, is shown to have been made; and nothing is shown to have been done to get the testimony of Lynch.
Those persons who had the care of the case for the petitioners, seem to have preferred to let it stand upon the showing of the petitionee, rather than be to the trouble and expense of obtaining the testimony of these witnesses. They almost entirely omitted to do anything about this part of the case ; not even doing enough to find out what they could prove by witnesses all the while accessible. This was'not reasonable diligence, even if it can be said that it was any diligence. Sound policy requires that when parties have had a reasonable opportunity to get their proofs, and have them heard and passed upon, there should be an end to litigation ; any other rule would be intolerable.
Decree affirmed, and case remanded.