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An early view from America in the Supreme Court of Nebraska.

Chancellor Pound said,

‘It goes without saying that, in general, the trial judge has a great advantage in that he sees and hears the witnesses. Moreover, he commonly knows more or less of their general character and standing, and may have a general local knowledge as to matters referred to in evidence and surrounding circumstances which enables him to weigh conflicting evidence with much greater assurance of reaching a correct solution than is possible in the reviewing court. Hence, in ordinary cases, where the evidence is entirely oral, and the trial court may be presumed to have had a general local knowledge of the parties, the witnesses, and the subjects of controversy, the finding of the trial court is often entitled to almost decisive weight. It is a matter of common knowledge that a written record cannot reflect the oral testimony at the trial with absolute accuracy. For these reasons, it is eminently proper that findings on conflicting evidence in such cases be adhered to, unless clearly wrong. It must not be forgotten, however, that there are sometimes advantages on the side of the reviewing court. In long and complicated equity cases, especially where an accounting is involved, there is a marked difference between reaching a finding on one’s recollection of what he has heard in the course of a trial lasting weeks or even months, and a finding as a result of patient investigation of a written record, with the aid of printed briefs, where comparisons may be made, computations tested, circumstances weighed, and conflicting statements sifted, upon the certain and assured foundation of a written page. Moreover, the court is instituted to review causes, and the right to resort to it for that purpose is guarantied by the Constitution. It has no right to renounce its functions. If, giving due weight to every advantage possessed by the trial court in the particular case, it is satisfied that a finding is clearly wrong, it should set such finding aside, notwithstanding there may be some competent evidence in support thereof. Otherwise it has not fulfilled its duty of reviewing the finding when properly challenged.’

 

 

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