1 Paige Ch. 550 | New York Court of Chancery | 1829
The Chancellor :—There is no doubt of the power of appellate courts, proceeding according to the course of the civil law, to allow the parties to introduce new allegations or further proofs. Such is the settled practice of the ecclesiastical courts in England, and of the admiralty courts in this country. But from the organization of the Court of Errors, it is doubtful whether any such right exists on appeals from the sentences or decrees of this court in testamentary causes. *In those courts where the right does exist, it is not a matter of course to allow the parties to produce further proofs. (The Euphrates, 8 Cranch, 385; The Bizarro, 2 Wheat. 227; The St. Lawrence, 8 Cranch, 434.) It would not be a safe or convenient rule to allow parties who have had the benefit of plenary proof before the judge a quo, to introduce new proofs to the same point before the judge ad quern, without any excuse for not having produced the evidence in the court below. If the appellant wishes to have the facts reviewed on new evidence in the appellate court, it would be proper for him, in his
But a more serious difficulty is presented in this case. The witness that the petitioners now wish to have examined is the sole appellant, and for aught that appears was the only party who promoted the suit before the surrogate. He now asks to abandon his appeal and renounce the execution of the paper propounded as a will, for the purpose of giving the legateé the benefit of his testimony. Without expressing any opinion as to the effect of the sentence of the surrogate on the rights of the legatee, or whether he is in a situation to appeal from that sentence, I am satisfied the relief prayed for in this case ought not to be granted.
Petition dismissed.
