Perkins v. Dana

19 Vt. 589

Opinion

The opinion of the court was delivered by

¡Redfield, J.

The question raised in the present case, upon the exceptions, was virtually decided by this court, upon the present circuit, in the county of Windsor.

Footnotes

•

* It was there held, that, if jail limits defacto existed for such a length of time, as is shown in the present case, it did raise an irrefragable presumption, against all the world, that they existed de jure. Any other construction would do violence to reason and to justice. The bond is taken with reference to the existing jail limits. The jail limits are a matter of fact, a definite object, as much as a farm, or a stream of water. When once set out by the proper authority, they have a legal existence, as set out, as much as any judgment of this, or any other court; and the validity of the one, or the other, does not, in any sense, depend upon the perfect wisdom, or strict legal correctness, in every point, of the decision, but upon the fact, that it is the decision of the proper tribunal'. Judgment affirmed.

The petition for a new trial certainly presents a somewhat singular case. Upon the trial in the county court the plaintiff gave evidence tending to prove ten distinct breaches of the bond between the 12th of April, 1839, and the 2d of April, 1843, all, except one of them, committed in open day light, and in the most public manner. He now asks for a new trial, that he may introduce testimony tending to establish two other breaches of the bond. This newly discovered evidence is not technically cumulative. But in a matter like this, addressed to our discretion, we naturally ask ourselves, how the plaintiff can expect to succeed with testimony of twelve such breaches, when it is obvious, that he failed in convincing the jury of the truth of any one of the ten, mainly in consequence of the multiplicity of evidence, which he adduced to so many separate and distinct breaches. In a matter of this kind, which, if done at all, would be likely to be done covertly, the very excess of testimony induces a suspicion of its genuineness ; so that the newly discovered evidence lessens, instead of increasing, the probability of the plaintiff’s; being able to convince a jury of its not being in some manner mis-taken, or misapplied. If genuine coin, of a particular description, is known to be scarce, or if a particular person is not supposed to have' the means of possessing much money, the finding, in the one' case,a large quantity of the specified coin, and the finding, in the other,, much money in the possession of the particular person, does induce-a suspicion of its genuineness.

In the present case, I think that the very fact, tliat' tlie plaintiff’ was able'to give evidence of ten distinct breaches,, and nine of them; in so open and notorious a manner, could not but raise some apprehension, that there must be some mistake in the matter, somewhere. This apprehension is not at all diminished by the newly discovered evidence.

We think, also, that for another réason the new trial in the present oase should be denied. Because the court should never grant a new trial, in favor of the plaintiff, in a suit upon a jail bond, unless he failed in his former trial through some fraud of the defendant, — which is not here pretended. This class of actions certainly operates with great severity upon bail, and ought not to be favored. There are few states, where a momentary departure from-the limits of the jail yard implicates the bail in an absolute liability for the whole debt. And if it were now of any importance, I think such a law would not long remain in this state. We think, at all events, that a plaintiff could very seldom be entitled to a new trial in a case upon jail bond.

Petition dismissed, with costs.

Downer et al. v. Dana et al., ante, page 338.