The opinion of the Court was drawn up by
By the statute of 1859, c. 94, a person is entitled to a review, as a matter of right, upon proof of three things; — (1,) that, upon the original trial, a witness testified falsely against him to material facts; (2,) that he was thereby taken by surprise, so that he was unable then to produce evidence that it was false; (3,). that such witness has been convicted of perjury in such testimony, or that the petitioner has discovered sufficient proof of its falsehood, in the opinion of the Court.
Whether these things appear, upon the evidence in support of the petition, must be determined by the presiding Judge. If he should find them proved by the evidence, and should then refuse to grant a review, the petitioner would have a remedy by exceptions. But, in the ease at bar, the certificate of the presiding Judge does not show that he found either of the facts specified by the statute; and one of them he distinctly negatives. Exceptions dismissed.
Tenney, C. J., Bice, May, Goohenow and Kent, JJ., concurred.