26 How. Pr. 90 | N.Y. Sup. Ct. | 1863
The conviction of Huntington for a felony and the sentence under it disqualified him from making the affidavit annexed to his petition.
It is declared by statute (2 R. S. 701, § 23) that “no person sentenced upon a conviction for a felony shall be competent to testify in any cause, matter or proceeding, civil or criminal, unless he be pardoned by the governor or by the legislature, except in the cases provided by law.” The disqualification is general. It extends to all cases where the declaration of the party is to be used in a judicial proceeding for the purpose of establishing or proving some fact; and it applies both to written and oral evidence. It is not limited to testimony or evidence on the trial of causes between parties, but in terms applies to all matters civil or criminal. The provision is intended as a rule of evidence, and as protection to the community against the peril of testimony from a person guilty of an offence implying such dereliction of moral principle as in the opinion of the legislature to carry with it the presumption of a total disregard to the obligations of an oath.
Insolvent proceedings are very important in their consequences, extending, in some cases, to the absolute discharge of debts, and in others limiting parties in the remedies for their collection, and affidavits of the applicant are required, of more or less stringency, to guard against fraud, and for the protection of the rights of creditors to be affected by them.
There is, therefore, as much if not more reason for disqualifying a person convicted of a felony from making such an affidavit, as-there is to disqualify him from being a witness on trial of a cause between third persons.
The effect and extent of the disability created by the statute of a similar character in England was discussed and considered in re Sawyer (2 Adol. & Ellis, N. S. p. 721), and it was held to extend to an affidavit which had been used to show cause against a rule calling upon another party to
The county judge, to whom the petition with this affidavit was presented, assigned a day for showing cause against the discharge of the applicant; and at the time designated certain of his creditors insisted, among other grounds as an objection to his discharge, that he had not been pardoned, and produced in evidence the record of his conviction for a felony.
The objections were overruled and the proceedings were continued, and resulted in the discharge asked for.
Having come to the conclusion that it was incompetent for the applicant to make the affidavit on which these proceedings were granted, it follows that they were unauthorized and void, and they must be set aside, if they are properly brought besore us by the certiorari.
Huntington’s application is said in the writ to have been presented to the county judge on the 18th day of March, 1862, whereas it appears by his return made thereto that the petition was dated the 21st day of May, 1862, on which day the affidavit annexed thereto was sworn to, and the order to show cause was made; and it is insisted on behalf of the respondent that the proceedings before the court are' not those required to be returned, and that no judgment can be rendered thereon; and it is also insisted that Lord, one of the relators, did not raise the objection against the sufficiency of the affidavit, and therefore cannot join with the others in the certiorari.
We are of opinion that neither of these objections is tenable.
The judge has made his return, as he says, in pursuance and by virtue of the said writ, and it must be presumed that the proceedings returned are those had before him, and that the statement therein, as to the time of presenting the
As to the alleged misjoinder of the relators, we are of opinion that it is competent for any parties to join in the certiorari, and if it appears from the return, as in this case, that the officer had no jurisdiction, it is immaterial how that fact was shown, or by whom the objection was made.
It follows, from these views, that the discharge was improperly granted, and that the proceedings should be set aside and reversed.
