Wing v. Bates

By the Court. In petitions for new trials such affidavits have generally been received for the purpose of making out the defence, or of rebutting testimony on the side of the petitionee. We do not think that practice a good one. In strictness such affidavits should be taken upon notice, as is required in the case of reports of road commissioners; Burgess et al. v. Grafton et al., 10 Vt. 321; and, if that is not done, the testimony should at least be filed a sufficient length of time to enable the opposite party to prepare to meet it before the trial. The affidavits will be received in the present case, and time given until next term to meet the evidence contained in them, if necessary to the ends of justice. A continuance not being insisted upon, the case was heard, the appeal granted, bail for the appeal entered in this court, and the case remanded to the county court for trial.