
    Joseph W. Tufts vs. James C. Newton.
    Middlesex.
    January 12, 1875.
    Ames & Endicott, JJ., absent.
    Under the 28th Buie of this court, which requires a petition to establish the truth of exceptions, disallowed by the judge presiding at the trial, to be verified by affidavit and to be filed within twenty days after notice of the disallowance of the exceptions, an affidavit that the exceptions are true is insufficient; and the defect cannot be cured by oral evidence that the person signing the petition made the requisite oath, and that the certificate of the magistrate was incorrect, or by a new affidavit in proper form made after the expiration of the twenty days.
    Petition to establish the truth of exceptions disallowed by the judge who presided at the trial in the Superior Court. The affidavit annexed to the petition was merely an affidavit of the attorney that “ the foregoing exceptions by him subscribed are true.”
    
      W. G. Sprague, for the petitioner,
    contended that the affidavit was sufficient; and stated that, if it was not, he should ask leave to have the record amended by adding to the affidavit a statement that he made oath that the allegations of the petition were true, which he said was the oath that was taken ; and further offered to make the necessary affidavit now.
    
      W. S. Stearns, for the respondent, was not called upon.
   Gray, C. J.

A party petitioning to establish the truth of exceptions disallowed by the presiding judge must strictly comply with the rule of court. This was determined in the earliest case upon the subject; Phillips v. Hoyle, 4 Gray, 568 ; and has ever since been considered well settled. Priest v. Groton, 103 Mass. 530, 536. The 28th Rule of this court requires the petition to be verified by affidavit, and to be filed within twenty days after notice of the disallowance of the exceptions. 104 Mass. 564. In the present case, the affidavit is merely to the truth of the exceptions, and there is none to the truth of the allegations in the petition. The defect cannot be cured by oral testimony, nor by a new affidavit made after the expiration of the twenty days.

Petition dismissed.  