Practice, Civil, New trial.
If a motion for a new trial, which is asked for on the grounds of alleged prejudicial conversations in the presence of the jury and of alleged improper conduct of the deputy sheriffs in charge of the jury and is supported by the affidavits of persons who have appeared as witnesses at the trial, is denied by the trial judge for the reason, stated by him, that he is not satisfied of the truth of the allegations contained in the motion, his decision will not be disturbed.
BY THE COURT . This bill of exceptions relates to motions by the plaintiff to set aside a verdict in favor of the defendant on the grounds of conversations by officers of the town in the presence of the jury during the trial, and of improper conduct of the deputy sheriffs in charge of the jury after the close of the evidence and before the rendition of the verdict.
Assuming in favor of the plaintiff, but without so deciding, that exceptions were saved, it is plain that there is no error of law on this record.
The plaintiff declined to appear for an oral hearing of witnesses, and the motions were determined on affidavits and counter affidavits. The judge of the Superior Court [Note p557] made a finding to the effect that he was not satisfied of the truth of the allegations contained in the motions, and for that reason denied them and refused as inapplicable certain requests for rulings presented by the plaintiff. In substance, the conclusion of the trial judge was that he did not believe that the facts set forth in the affidavits in support of
the motions were true. Most of the affiants had been before him in some capacity during the trial. Manifestly he was in a better position to decide upon their credibility and upon all matters set forth in the affidavits than any one else. His findings on the facts will not be disturbed. The rulings requested related either to facts or to matters rendered immaterial in view of the findings. Clapp v. Clapp, 137 Mass. 183 . Commonwealth v. White, 147 Mass. 76 .
The case was submitted on briefs.
M. Coggan, M. S. Coggan & G. L. Dillaway, for the plaintiff.
R. B. Dodge & W. J. Taft, for the defendant.
[Note p557] Lawton, J.