40 Vt. 286 | Vt. | 1867
The opinion of the court was delivered by
The character and manner of the argument in behalf of the plaintiff have led us to a fuller discussion of the subject than the importance of the question, or any difficulty involved in it, would seem to require. The plaintiff’s objection to the evidence tending to show that notice was not given to either of the selectmen rests on the assumption that, in order to render such evidence admissible, the lack of such notice should have been pleaded specially, or notice given under the general issue. A conclusive test
The common law as to defences that may be made under the general issue, in actions of trespass on the case, is, in our opinion, well stated in Whitney v. Clarendon, 18 Vt. 252, and in Kidder v. Jennison et al., 21 Vt. 108; and, were it not for the statute of 1856, which now constitutes said. sec. 15, ch. 33, Gen. Stat., we think the admissibility of the evidence given by the defendant would not be questioned; and we regard it equally clear, that, in this action, the subject matter of that evidence does not fall within the terms and intent of that section.
But to recur again to the case of Kent v. Lincoln, there is no doubt as to what was decided in that case, nor as to the ground of the decision. We find no occasion to criticise or discuss the aptness of the remarks of the judge, in drawing up the opinion, as to certain seeming analogies between the statute of limitations, and the statute of frauds, and the statute requiring the notice in question. They were made, not as presenting the principle, or the ground and reason of the decision, but rather as tending in some respects to illustrate the true view to be taken of the statute requiring said notice. It was
The judgment is therefore affirmed.