New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1875-01-30

y
received from very respectable gentlemen calling my attention
to it, but shall my kart Voluntarily recar 10 tie
subject but way commend to the attention Of those
speak Of the trial n Their papers
Mr. PIYORS ARGUMENT RESUMED.
NJ Pryor-If your Honor please, yesterday, On
the djourmen the immediate topic Of discussion whether
the antecedent and independent competency Of the pit 10
be witness on his OWL behalf Lad been impaired OF tced-
competency you viii remember, conferred ~ TIE act Of
lS57-had been impaired affected by the Act Of tie 10Th Of
May 1867 and was entirely oJy9g lad been demonstrated
BY reference to tie tile Of tie Act Of 1851, BY
reference 70 is text BY consideration Of its per-cng
and prevailing IMPORT war tenonsr.tyey obvious
that there clash collision between tie Act OF lsi
and Of 1867 that the contrary they covered differ
subject matters contemplated different ends and accom-
pshe1 different and dssmI objects Now, them II Is
familiar maxim Of the law that former statute Lot repealed
by subsequent except the provisions Of Tie two are
ireconciaby incompatible, and that The two may stand
together the shall stand, and fun effect AID operation be
gwen 10 each So then resulted logically and egay that
the competency TO be witness in his own BEHALF conferred
upon this plaintiff by tic Act Of 1851 affected dis
paraged by subsequent Act Of 1861 Nevertheless the
search Of the learned gentlemen the other side has discovered
and produced decon-for arguments sake indeed IN caIGor
allow is not o5er Qr and Is On adjudication 10
the ponther research has produced case Of Dam King
DOM reported y. Y. Supreme Court r. p0rs wherein il
held have admitted il adutcaed that the Act Of
1861 does GIsqu4ly plaintiff 70 b. witness MS own be-
half
Judge Yolson-Is that .he case IL which Judge Smith wrote
the opinon'
MI PryorThst h the case Sr. Now please your Honor,
that decision Of any superior tribunal Of your own Gen
eral Term much decision Of the Court Of last
resort the Court Of Appea- then no alternative woEd be left
70 your bow Submissive silence 10 the acUdca
on matter how pusuant 10 night md 70 reason But his
the decision Of superior tribunal It IL the decision not
Of the Court Of Appeals your General Term but lie
r44r Tf.-r. q t.r # re rO-4r
ma Jurisdiction and therefore, albeit -0a Jaee entitled 10
respect and Consideration nevertheless il open and accessi
bic to criticism and Il il be plainly IagHan. 10 reason a1t
rcut SENSE the privilege Is conferred upon
your Honor to scout and Re jet IT,
JUDGE NELSON Ns-EUcTs TIE COUNSEL
Judge Selson-I VII mention TO you ,Ae rue We adopt IN
this Court Nj Pryor IN respect TO tie decisions Of Coas
Other than tie Cour, OF Appeals this State accept them
and a. lar think they sound and JUST ADOPT 4la
follow them; and like degree though perhaps in less
degree accept the decisions Of other states also Of lie
England, holding ourselves The right to consider
The right duty consider lhe weight Of the opinion Is
resting upon reason and upon authorities cited from other
sourcc and which may Lay 4ot DC commended 10 our
judgment Ia Ii, premises
NJ PRYOR EXPLAINS HIS POSITION.
Mr PRYOR. supposed, if your Honor please as you have
stated that the criterion Of authenticity and authority attaching
10 the decision Of another Court It, conformity TO reason
and l was proceeding exhibit concusigey Ideerenray
submit and al respect the learned Court by whom tie
decision vas promulgated, that this decision IS absolutely
puant TO reason shadow OF founCato il the basis
upon which il puFpors be established My learned friend,
.n. the license legnatdy belonging to counsel, IMAGINED
that this Csc bad been argued by the profession with research
and vigilance; but the report exhibits nothing u The kind and
the opinion Of Judge himself yoa viii observe L
bodied i'll this brief, curt paragraph:
The plaintiff was not a competent witness to prove such
witnesses for and aganti each other laws 1851 Chap
press excepts te cases where the question Of adultery o the
wife E+r-
in cse Of La AID ~ iacI VI marriage IL actions
Of divorce.
Thus YOU perceive a, the learned Judge arrives at the
pson v no process u reason be sustained the
cpso by any citation Z authority but he merely reaches
mr. sqtaa and it oracgary an tpSe Dirt And
VIVA, il TIA. iDse dir Why that the Act Of 1867 prohibits
wife IN an involving question Of adultery from being
witness Now Sir the Act Of ST. accompsnes such thing
The decision therefore founded upon plain, papabe mis-
rsin and nisconsrlcton Of the very Act upon which
purrorts 10 be Bear mind the words Of the
dre that this second section Of the Act Of 1857 -rbid
party in an action involving question u adultery from being
winners that say from being witness absolutely and
uuouaacdy he announced The proposition in general
without restriction modification whereas what he terms
Of the Act ItseI.
Nothing heien contained shall render any husband wife
competent cOmpeabe 70 give evidence Tor OF against the
Other
Nt ro-netent or compeabe merely give evidence but
en and compelabe to give for against the
other.
In suv criminal action proceeding Except to prove the
fsc of uargc except Of beauy) or N any actOn or
rccrg instituted n consequence OF allty " IL any &c
M up cceug divorce account OF adultery except 10
rve Inc fact Of m seton or proceeding Tor
Or Oh account Of criminal conversation
Now Sir the sentence long and involved and likely upon
ry prssl nasnuch the qualifying clause II found IN
the second line Of tae sentence before the learned Judge ar
rived al the concluding line he had dropped from MS mind and
b memory those qualifying words namely ioT or against the
hr so he announced that This Act III peremptoy and alb
ute terms excluded husband wife from being witness IN
AN action Of criminal conversation Whe ~ the Act only ex
dudes husband or wife from being witness IN action Of
criminal conversation for agalsi the other.
Triton S0T 4 gITSEs- AGAINST HIS WIPE.
Now Sir this witness n proicred here tins witness does
not Oder 70 take the and testify Ia this case in lea sense
for or against The wife lie presents hlscl 10 esii} ist
The wife. alleged seducer. lie proposes under the sornny
Of ar OATH 70 swear Ae adultery Of Henry Ward b"c'e
Il IL not for or aganst wife IN LEGAL sense thai Doc pro-
poses 10 testify and Therefore his qualification or co-ch
10 be witness IL not affected dspargrd by '- exception
In the Act Of 1857 Wherefore then this decision 81 The
learned Justice nsOmueh asand beg your Honor 10 baf 10
mnd-inasnuch the learned Court put their decision e@cu
sycy upon Of this Act inasmuc they do not pre-
tend or contend that independently Of this Act he would not
be competent the contrary, by implications they
assume In argument that bat for this Act by the principles
Aefo he