
    Nicholas H. Wing & Wife, v. Susannah Bates, Executrix.
    On petitions for allowance of an appeal from the decision of commissioners on an insolvent estate, affidavits in explanation or contradiction of the testimony on which the petition is founded, as set forth in the petition itself, must be taken with notice, or filed a sufficient length of time to enable the opposite party to examine them.
    If the appeal is granted, the bail for the appeal must be entered in the supreme court.
    This was a petition to be allowed to enter an' appeal from the decision of commissioners on an insolvent estate.
    A .question was made whether ex parte affidavits could be received in explanation, or contradiction, of the testimony upon which the petition was founded, which was set forth in the petition, in the manner usually practised in petitions for new trials.
   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.  