Pattee v. Whitcomb , 72 N.H. 249 ( 1903 )


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  • We are satisfied by the amendment filed since the motion for rehearing that the evidence offered by the appellants, that, "during the period of his [the testator's] marriage to Caltha he was much under her influence," was excluded by the superior court upon the ground that the evidence was incompetent as matter of law, and not because the witness who was to swear to it was found to be without the requisite qualifications to testify upon the subject. In this view, the exclusion of the evidence, according to the law of this jurisdiction, as shown by the authorities cited in the former opinion, was error. But it is urged that the error was not prejudicial, because if the evidence had not been ruled out as matter of law, it should have been ruled out as matter of discretion. This is not so clear; but in any event the question of discretion is not for our determination. Patten v. Cilley, 67 N.H. 520, 528; Carpenter v. Hatch, 64 N.H. 573. It is further urged that the error was without prejudice, because the witness had in effect stated, by way of facts testified to, what he was not allowed to state by way of opinion. We cannot say that the witness' opinion would have added nothing to the weight or effect of his testimony. For what it was worth, the appellants were entitled to it; and it is not our province to finely analyze the effect of its exclusion upon the verdict.

    New trial granted.

    All concurred. *Page 254

Document Info

Citation Numbers: 56 A. 459, 72 N.H. 249

Judges: REMICK, J.

Filed Date: 10/6/1903

Precedential Status: Precedential

Modified Date: 1/12/2023