Day v. Day ( 1876 )

The facts found by the court are sufficient, according to my understanding, to constitute legal cruelty, according to the case of Harratt v. Harratt, 7 N.H. 198; — see, also, C_____ v. C_____, 28 Eng. L. E. 603.

By Carlton v. Carlton, 40 N.H. 14, the witness being under the age of fourteen years, was prima facie incompetent; and this presumption had to be removed in order to his admission. On examination, no want of intelligence was found, and no want of general religious instruction and competency, but only want of knowledge of the nature of an oath. To such a child it must have been easy to communicate the necessary information on that point. The competency was a question of fact, which, being determined by the court below, is not open for revision here. If the objection were that so young a person was by law incompetent, it is removed by the case of Carlton v. Carlton, ubi supra. If the objection were to the fact of competency, the court has not the means to revise the finding, neither has it authority to do so.