#### In re Will of FRANKS.

(Filed 31 January, 1950.)

1. Appeal and Error § 22—

Tlie record imports verity, and is binding upon the Supreme Court.

2. Appeal and Error § 43—

Affidavits of witnesses, tending to show facts in material respects different from their testimony as it appears in the record of the case on appeal, cannot be considered on petition to rehear, since the Supreme-Court is bound by the record as filed.

PetitioN by caveators to rebear this case as reported in ante, 252.

Tbe Justices to whom tbe petition was referred filed tbe following-memorandum in passing upon tbe petition:

Simms & Simms for petitioners.

Devin and Seawell, JJ.,

considering tbe petition to rehear. Tbe petitioners filed with their petition to rehear the affidavits of two-persons who bad testified at tbe trial tending to show facts in material respects different from their testimony as it appears in the record of the-case on appeal. Tbe affidavits relate to tbe attestation of tbe paper writing propounded as tbe will of tbe decedent. Upon these affidavits; two members of tbe bar have filed certificates under Pule 44 (2) in-support of tbe petition to rehear, basing their action on tbe suggestion-that if petitioners be given opportunity to change tbe record to conform to these affidavits, a different result would follow.

However, tbe record of tbe case which was agreed to by counsel, duly-certified below, and filed in this Court as tbe case on appeal, and upon which, without objection, tbe cause was argued here, and tbe decision-, of this Court rendered, imports verity and is binding upon the Court. S. v. Dee, 214 N.C. 509; Gorham v. Ins. Co., 215 N.C. 195. Hence the-affidavits now filed cannot be considered on tbe petition to rehear. Nor are tbe matters set out in tbe affidavits sufficient to come within tbe rule as to newly discovered evidence set out in Johnson v. R. R., 163 N.C. 431 (453); Bullock v. Williams, 213 N.C. 320; Utilities Com. v. R. R., 224 N.C. 762.

An examination of tbe petition to rehear, in connection with tbe decision of this Court heretofore rendered and reported in 231 N.C. 252, fails to disclose any error in law thereon, or matter overlooked.

Tbe petition to rehear is denied.