
    William H. Sturtevant, petitioner for review, versus Hatherly Randall.
    Upon a petition for review under c. 94 of the laws of 1859, the finding of the Judge at Nisi Priws, on the questions of fact, is conclusive, and cannot he revised on exceptions.
    On Exceptions.
    Petition for review of an action under c. 94 of the laws of 1859. The petition alleged that, upon the trial of the original action, Randall testified falsely to material facts.
    Upon the hearing, at Nisi JPrius, the presiding Judge finding, as matter of fact, that he was not satisfied that the testimony referred to was false, denied the writ,, and the petitioner excepted.
    
      Tollman and Gilbert, for the petitioner:
    AC M. Whitmore, for the respondent.
   The opinion of the Court was drawn up by

Davis, J.

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.  