Testimony is not incompetent merely because it differs from, or is inconsistent with, statements of the witness at a former hearing. In the absence of exception, it is presumed that the evidence in a case warranted its submission to a jury, and that correct instructions were given as to the legal effect of the facts of which there was proof.
PARSONS, C. J.
The allowance of the amendment to the plaintiff's statement of her case in the bill is not subject to exception. The question of justice involved is one of fact. Objection to the decision of the fact by the superior court does not present any question for consideration here.
If the plaintiff had admitted that she committed perjury at the former hearing, such an admission would not prevent her testifying to the truth when again called as a witness to the matter. Such fact, if admitted or proved, would have affected the credibility — not the competency — of her testimony. P.S., c. 224, s. 26; Wilson v. Russell, 61 N.H. 354; Demeritt v. Miles, 22 N.H. 523, 528; People v. O'Neil, 109 N.Y. 251, 266. So far as Behr v. Insurance Co., 4 Fed. Rep. 357, cited by the defendant, tends to support the objection urged against the plaintiff's testimony, the holding appears to be made in deference to peculiarity of the law of Tennessee which the opinion concedes is not the rule elsewhere. Ib. 368; 1 Gr. Ev., 210; 1 Wig. Ev., s. 525, et seq.
The evidence excepted to was competent. The effect of the evidence, tending to show that the plaintiff's claims and testimony upon a former occasion differed from or were inconsistent with her claims and testimony in this case, is a question not raised by the exceptions taken to the allowance of the amendment, to the admissibility of her testimony as now given, or to her competency as a witness. It must be assumed that the whole evidence presented matter properly for the jury, and that it was submitted to them with correct instructions as to the legal effect of the facts of which there was proof, no exception having been taken on either point.
Exceptions overruled.
All concurred.