Dow v. Town of Hinesburgh

1 Aik. 35 | Vt. | 1825

The opinion of the Court was delivered by

Hutchinson, J.

The defendants, after a verdict for the plaintiff move for a new trial, on the ground of surprise.— They state in their motion, the circumstances of the surprise, supported by the affidavit of counsel, as is understood, though the affidavit is not delivered to the Court. By this it appears, that the defendants’ counsel understood General Leavenworth, in his testimony, to allude to the settlement of the Rev. Mr. Parmalee, as fixing a date to certain improvements on the land in dispute, and for no other purpose, and neglected to offer testimony in their possession, to show that he never was settled as a minister in said town, and rested the cause with safety, as they thought. As plaintiff had shown no title, but possession only, and as the statute of limitations would not affect this lot, while it remained a publick lot; and, when it was too late to offer testimony, they discovered that the Court treated Leavenworth’s testimony as evidence of a settlement, vesting the land in him, after which the statute of limitations would attach, and, with fifteen years adverse possession, make a title.

It appears evident to the Court, that the merits of the case have not been tried at all. The defendants might well expect, that the plaintiff would produce some different testimony, if he would contend that the minister was so settled as to vest a title in him; especially, as they understood this testimony to be incidental, merely fixing the date of a possession. The defendants ought, on reasonable terms, to have an opportunity to exhibit, on trial, what they consider to be the real merits of their case. A new trial is therefore granted, on the defendants paying to the plaintiff the taxable cost of the term in which the jury trial was-had.