Carter v. Jackson

58 N.H. 156

• Court: Supreme Court of New Hampshire
• Decided: August 5, 1877
• Status: Published

Opinion

Stanley, J.

The amendment was properly allowed. It did not change either the form or the cause of action. Burnham v. Plant, 57 N. H. 41. The objection to the competency of the plaintiff’s wife, as a witness of the deed under which he claimed, is based on the relationship between them. Formerly this might have been a valid objection, since attesting witnesses were required to be competent, at the time of attestation, to testify to the fact which they attested. 1 Greenl. Ev., s. 573; Carlton v. Carlton, 40 N. H. 14; Bank v. Root, 2 Met. 522, 533. But as the wife, at the time this deed was executed, was competent to testify for her husband in any case not involving a violation of marital confidence, the objection to her signing as a witness, if any such ever was valid, cannot now avail the defendant. Gen. St., c. 209, s. 22.

The grounds of the motion for a nonsuit, having all been considered in this case on the former transfer, will not now be reconsidered. That decision must stand as the law for this case. A cause will not ordinarily be reheard in that way, and there is nothing to take this case out of the operation of the general rule. Stantons v. Thompson, 49 N. H. 272; Bell v. Woodward, 47 N. H. 539; S. C., 48 N. H. 437, 442; Bell v. Lamprey, ante, p. 124.

The ruling of the court upon the question of the comparison of handwriting was correct. State v. Hastings, 53 N. H. 452.

The general verdict was in accordance with the answers to the special questions submitted to the jury without objection, and the objection to the verdict on this ground cannot be sustained.

Judgment on the verdict.

Bingham, J., did not sit.