Hathaway v. Evans

Ames, J. 1. The admission or rejection of the plan, at the time when it was offered, was a matter wholly within the discretion of the presiding judge, and is not subject to the revision of this court. Morse v. Potter, 4 Gray, 292. Carruth v. Bayley, 14 Allen, 532. 2. There was conflicting evidence as to the matters embraced in the third and fourth propositions which the defendant requested the court to adopt in its instructions to the jury. The court could not have instructed the jury as requested, without assuming the decision of controverted matters of fact. The instructions actually given were correct and appropriate, and were all that the case required. Kellogg v. Smith, 7 Cush. 375. It was a question of fact as to an ancient line, located and marked upon the earth by the parties in interest, recognized and acted upon, for many years, as the true line. Exceptions overruled.