Dow v. Dow , 77 N.H. 150 ( 1914 )

The suit was for the alienation of the affections of the plaintiff's wife. There was proof of an action for divorce by the wife against the plaintiff, the libel being in evidence. The plaintiff called his wife as a witness and, having proved the signature by the wife, was permitted to read to the jury a statement in the form of an affidavit signed and sworn to by her. Whether there was an error of law in the admission of this affidavit is the sole question in the case.

Whether the witness was hostile, and whether the plaintiff, having called the witness, should be permitted to contradict and impeach her, were questions of fact determined at the trial. Whitman v. Morey, 63 N.H. 448,456. The statements of the affidavit are relevant to issues which must have been material at the trial: an explanation of the allegations of the libel for divorce, and the responsibility of the defendant for the "trouble" between the plaintiff and his wife. The witness having testified differently, the affidavit was admissible to discredit her testimony. Whitman v. Morey, supra; Hurlburt v. Bellows, 50 N.H. 105, 116.

Exception overruled.

All concurred.