Hurlburt v. Bellows
50 N.H. 105
N.H.
1870
Check Treatment

By the Court.

When the determination of the competency of a proposed piece of evidence involves a preliminary decision of any questions of fact by *116the presiding judge, his decision on such matters of fact is final and not subject to exception. See State v. Pike, 49 N. H. 399; State v. Squires, 48 N. H. 364. In this case, evidence was presented to the judge upon which he might have found that the plaintiff was taken by surprise at the later testimony of Beard; that there was no collusion between the plaintiff and the witness, nor any bad faith on the plaintiff’s part; and- that the witness was adverse to the plaintiff. As the judge, after considering the evidence on these preliminary questions, allowed the plaintiff to prove the previous contradictory declarations of the witness, and reserved no question of fact, or of discretion, for our consideration, it is to be assumed that he found the facts to be as claimed by the plaintiff.

We are not now called upon to decide whether a party shall, in all instances, be allowed to prove the previous contradictory declarations of a witness whom he himself first called to the stand; but only whether such declarations may be proved after it is established that the party calling the witness was surprised at his testimony, and was not guilty of collusion or of any bad faith, and that the witness was adverse to the party calling him. We think no exception lies to the ruling in this case.*

Judgment on the verdict.

See Ryerson v. Abingdon, 102 Mass. 530, 531. Reporter.