McConnell v. Strong , 11 Vt. 280 ( 1839 )

The opinion of the court was delivered by

Williams, Ch. J.

The only ground on which the petitioner can#ask for a new trial is, that he has. discovered new and material evidence. The action on book, in favor of Strong v. McConnell, was finally heard and decided at the last term of the supreme court in this county, and is reported in the 10th volume of Vermont Reports, 231. The questions of law raised and decided in that case cannot be again presented for decision on this'petition. This point was decided in the case of Beardsley v. adm’r. of Gordon, 3 Vt. R. 324. The affidavit of the auditor cannot be received to vary or alter the report presented by him at the county court, or to show what he intended by any expressions or terms therein contained. Ample opportunity is usually afforded for correcting and amending such reports, before they are finally acted upon oy the county court. The affidavit of the auditor can have no effect on the question now to be decided.

On examining the petition and affidavits, we can discover nothing, which shows that injustice has been done, or that the account was not correctly examined and adjusted,- or that a different result would bb produced on a new hearing.

If,- however, from the affidavits it should have appeared that the petitioner received the boards in payment, so that he could prevail in his legal defence to the action on book, on another trial, we should not have been disposed to grant a new trial to enable the party to avail himself of a defence, which, though legal, was clearly inequitable. There is no question but that the petitioner had boards of the petitionee. The parties do not agree as to the quantity. The petitioner, in his affidavit, says he kept an account of the boards received. If he knew the amount, as he gays, and they were received in payment of the note; he should have indorsed it, and not taken judgment for, the whole amount of the note, and in that case no recovery could have been had against him in the action on book. _ If, on the contrary,, they were not to be applied in payment, without a subsequent examination, the quantity and,prices should have been adjusted before the auditor, and every question in relation to the claim on book should have been presented in that ac* tion.

The petitioner, however, relied on his legal defence to the action on book. But having recovered and received the full amount of the note, and having failed ii) his prqofto establish his defence, there would be no propriety in opening this cause for another trial to enable him to succeed in a legal but riot an equitable objection to the action on book, although the affidavits should present a stronger case than we now discover. The petition must, therefore, be dismissed, with cost.