66 Vt. 56 | Vt. | 1893
The plaintiff moves that this case, which is reported in 65 Vt. 84, may be brought forward upon the docket and that it may be reargued. The two motions have been heard together.
The plaintiff insists that the court committed two errors in its decision, which, if corrected, should reverse the judgment.
I. On the trial by the referee the defendant offered in evidence a paper which purported to be an order made by the Court of Commissioners of Alabama Claims, July 29, 1885, prohibiting the plaintiff from further appearing before those commissioners as an attorney. To the admission of this order the plaintiff objected, but it was admitted by the referee, subject to the plaintiff’s exception. The referee did not submit to the county court the question of the admissibility of the order, and the plaintiff filed no exception to the report on the ground of the alleged error of the referee. The
II. The motion in which irregularities are alleged in the appointment, procedure and report of the referee was not considered by or filed in the court below, and therefore cannot be entertained here.
III. The referee has found that there was no express promise made by the defendant to pay the plaintiff for his services in prosecuting these claims. But the plaintiff contends that the law implied a promise by the defendant to pay him from the fact that the defendant received the funds, and that, by the equitable nature of the action of indebitatus assumjbsit, he is entitled to a judgment.
It was the obvious legal duty of the defendant as special or ancillary administrator, to account to the orphan’s court for the funds and to distribute them pursuant to the decree of that court. The plaintiff did not obtain an order from the court that the defendant should pay him for his services, and the defendant-had no authority to pay him.
It appears that though the defendant knew that the plain
Upon a review of the case we find no' considerations urged upon us that were not urged at the former argument. It is a well settled rule that this court will not reverse or revise its decisions upon substantially the same facts upon which they were first rendered. Herrick v. Belknap, 27 Vt. 673; Stacey v. Vt. Cent. R. R. Co., 32 Vt. 551; Barker v. Belknap, 39 Vt. 168; Childs v. Insurance Co., 56 Vt. 609; St. Johnsbury & L. C. R. R. Co. v. Hunt, 59 Vt. 294. The court will not favor motions to bring cases forward unless the alleged errors are specifically pointed out in the motion.
The motions must be dismissed with costs.