The evening world., 1921-04-01
IF oFFENSE is CoNDoNED
PLAINTIFF CAN'T DISPRoVE 1T.

while the party charged could tcs-
! tify to facts tending TO deny the
charges made, or to prove that they
/ were procured to be committed or
condoned at by the other party to
| the marriage, or that the offenSes
have been forgiven or condoncd, the
plaintiff by his testimony could not
diSpruvc II. The decision in the I3iers
case was overcome by an amendment
TO Section S3l OF the code by Chapter
| 1871, Laws OF 1915, as follows: How
ever, If upon such trial or such hear
| ing the party against whom the ale
/ cation of adultery Is made produces
! evidence tending to prove any OF the
defense thereto mentioned in Section
| 1883 Of this act the other party Is COM
petent TO testify in disproof OF any
such defense
| "Mr. Nichols. in his WORK on New
! York Practice, vol. l, p. SAT, said:
| Tho question as to whether a person
| incompetent to testify NJ a witness
/ can make an affidavit which will he
1 considered, and the effect thereof Is
! uf considerable interest, but no posi-
! tive rule has been laid down in regard
thereto in this state. 1t has been held
, that whore the testimony Of the
/ plaintiff would be incompetent, by
/ reason Of It's relating to u transaction
| with deceased person, the plaintiff =
affidavit IL not alone sufficient to sup
! port an Injunction and the appoint
mont OF a receiver, and that u person
serving sentence on conviction
for felony, cannot make an 3fi-
davit.' Uteferring to Gregory VS..
! Gregory, 30 Super. &. II. l J aud \. / !;
People ex rel Lord w. Robertson, 20
How. L. II. 0O)
"In the case of the People OK rel
Lord supra, an insoivcnt debtor was
disqualified from making an affidavit
To his petition for his discharge from
| imprisonment under the insOlVcnt
laws. and Mr.. Justice Lott said at
pages 81 and 80: The disqualification
iS general. IL 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
sonlo fact; and II applies both to writ
ten and oral evidence. II Is not lin
itcd 10 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 ofcnso Implying such dereliction
OF moral principle in the opinion Ot
the Legislature to carry with II the
presumption Of total disregard 20
tho OBLIGATIONS Of an oath.
'InsOlycnt proceedings are very
important N their consequences, OK
tending. In some cases. to the ahSo-
lutte disregard Of debts, and in others
! limiting parties in the remedies for
their collection, and affidavlts OF the
applicant are required, of more Oh
less stringency, To guard against
fraud, and for the protection Of the
& rights OF creditors Ia bo affected by
p them,
! "Thcrc Is, therefore as much il moi
+ more reason for disqnalifying q per.
J son convicted OF "a felony from max.
= ing such an affidavit as there is q
4 disqualify him from being a witnes.
A on trial OF a cause between third per,
sons
( THE effect and extent OF the dis.
= ability created by the statute OF 9
. similar character in England was dis
3 cussed and considered in re Sawyer
> G. Adol and Pills, N, :. r., 72l) and
$ IL was held TO extend to an affidavit
4 which had bean used to show cause
j against a rule calling upon anothe,
4 party to answer certain matters, anc
. the court ordered the nffdBvit to bI
r taken or the files (sec also in Green.
a leaf on Evidence Section S74)"
The affidavit Iaugt be made by Z