Wingate v. Melson ( 1798 )

Per Curiam. Bassett, C. J.

Gentlemen will indulge each other in not taking advantage of the rules, and by that means come to trial without knowing what is to be tried; but we will not suffer in such case as this the defendant to take the plaintiff by surprise on such an unexpected issue.

In the course of the trial Wilson found it necessary to read this award and bond in establishment of boundaries and proved them.

Miller and Peery objected that they could not now be read, as the defendant was before precluded from pleading them; and that awards are not evidence of boundary, for the proofs on which they are founded are better evidence and ought to be produced, and cited a case under f armer arrangement of courts viz, Paynter’s Lessee v. Parker in the Supreme Court.

Wilson. The objection was not so much to the paper as evidence before, as to the propriety of pleading that in bar which plaintiff did not come prepared to consider in that point of view. Awards on any kind of facts are open equally to the objection that the original proof is better evidence, and the same objection would lie to verdicts "which, as well as awards, are good evidence always between the same parties on the same question as is the case in this instance.

Per Curiam.

These papers are admissible evidence.

The question for the jury was only on boundary, and the usual charge that when such are called for in a survey or patent and proved, they terminate independently of courses or distances expressed.

Verdict for defendant.