Richardson v. Lloyd , 99 Mass. 475 ( 1868 )

Wells, J.

To entitle the petitioners to a review, it was necessary for them to establish the proposition that the newly discovered evidence was in itself new and material. As there had been testimony at the trial in regard to the paper afterwards discovered, the question could not be determined without proof of what actually occurred, in regard to it, at the trial before the jury The court received the evidence of the petitioners upon that point; but refused to hear the testimony offered by the respondent to the same point. This was error. No fact is legally proved, in judicial proceedings, by paroi evidence upon one side only, when competent and proper opposing testimony is rejected.

The determination of the facts in controversy rests conclusively with the judge who hears the case; and so also, to a degree, does the question of the propriety of granting a review. But his rulings upon the admission and rejection of testimony offered to establish or disprove the alleged facts, and upon any other question of law, or of legal right of the parties, are open to revision upon exceptions. Davenport v. Holland, 2 Cush. 1. Gen. Sts. c. 115, § 7. The power of the judge to determine the whole matter ultimately does not involve the right to do so arbitrarily and in disregard of the legal modes of trial of the question in issue before him. Commonwealth v. Howe, 9 Gray, 110, 113. From the exceptions it appears that the main facts, upon which the claim for a review rested, were.not tried in accordance with the rules of law applicable to the trial of all questions of fact.

The testimony of Stratton presents no separate question. The admission, sworn to by him, corresponds with the testimony of Lloyd at the trial, as stated by the petitioner Abbey.

Exceptions sustained,