People ex rel. Lord agt. Robertson. SUPREME COURT. THE PEOPLE ex rel. WILLIAM G. LORD and others, appellants agt. WILLIAM H. ROBERTSON, county judge of Westchester county, respondent. Where an insolvent debtor, previous to his imprisonment on a ca. sa. in the county jail, had been convicted of forgery, and under his sentence had served out his term of imprisonment in the state prison, never having been pardoned: Held, that he was thereby disqualified from making an affidavit to his petition for his discharge from imprisonment under the insolvent laws. It is competent for any parties to join as relators in a certiorari; and if it appears from the return that the officer had no jurisdiction, it is immaterial how that fact was shown, or by whom the objection was made. Second District General Term, November, 1863. LOTT, EMOTT and SCRUGHAM, Justices. On the 30th day of December, 1856, Charles B. Huntington was convicted of forgery at a court of special sessions, and sentenced to state prison for a period of years, which he served out. After the expiration of his term of service, the relator Lord obtained judgment against him, and an order of arrest having been granted in the action, he was charged in execution against his person in the county of Westchester. He thereupon presented a petition under the insolvent laws, for the discharge of his person from imprisonment, to the respondent, and annexed thereto his affidavit. On the return of the order to show cause, the creditors, Lord, Belden and others, among other objections claimed that Huntington, not having been pardoned, was incompetent to make the necessary affidavit. The county judge overruled the objection, and granted a discharge. The relators sued out a certiorari to this court, which was argued at the July term, 1863, and decided October, 1863. P. J. JOACHIMSEN, JOHN A. GODFREY, and MILLS & JOHN J. CLAPP, counsel for respondent. People ex rel. Lord agt. Robertson. By the court, LOTT, Justice. 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 People ex rel. Lord agt. Robertson. answer certain matters, and the court ordered the affidavit to be taken off the files. (See also 1 Greenleaf on Evidence, § 374.) 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 Niles agt. Battershall. petition, is a mistake, and, as a full return has been made, the mistake is immaterial. 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. NEW YORK SUPERIOR COURT. WILLIAM W. NILES agt.- LUDLOW A. BATTERShall. No undertaking is necessary on an appeal from the special term to the general term of this court, to sustain the appeal. But if a stay of proceedings is desired by the appellant, he must either obtain an order of court for that purpose, or he must file and serve, with the notice of appeal, a copy of an undertaking as required on an appeal to the court of appeals. New York Special Term, October, 1863. JUDGMENT having been entered in this action against the defendant, on the 18th August, 1863, he, on the 21st September, appealed therefrom to the general term, by the service of a notice of appeal on the plaintiff's attorney and on the clerk of the court. The plaintiff's attorney refused to receive the notice of appeal, on the ground that an undertaking had not also been filed and served. On the 29th September an undertaking was filed and a copy served on the plaintiff's attorney, which he returned, because too late. On the 30th September the notice of appeal and copy undertaking were again served on the plaintiff's attorney, who again refused to receive them. The motion is for an order staying proceedings on the judgment pending the appeal; setting aside any execution Niles agt. Battershall. which may have been issued upon the judgment, and for leave to file the undertaking nunc pro tunc. R. W. TOWNSEND, for defendant. MONELL, Justice. The service of the notice of appeal on the 21st September (it having been conceded on the argument that it was in time) was sufficient to perfect the appeal. No undertaking is necessary in an appeal from a special to a general term of this court. The refusal, therefore, of the plaintiff to receive it was irregular. To stay proceedings on the judgment appealed from, the appellant must either obtain an order from the court for that purpose, or he must file and serve an undertaking as required on an appeal to the court of appeals (Code, § 348); and it seems such undertaking must be filed and a copy served with the notice of appeal. The undertaking, therefore, which was served on the 29th September was too late. (Code, § 340; N. Y. Central Ins. Co. agt. Safford, 10 How. Pr. R. 344; Cushman agt. Martin, 13 id. 402.) There is no reason given in the moving affidavit for not serving the undertaking with the notice of appeal, and I am unable, therefore, under the authority of N. Y. Central Ins. Co. agt. Safford (supra) to give the defendant the relief he asks for on this motion. Upon furnishing a sufficient excuse for omitting to serve the undertaking at the time required, the court may relieve the appellant, and upon proper terms grant him a stay of proceedings. (Code, § 327.) The appellant can go on with his appeal, his notice being sufficient for that purpose; but as the case now stands he cannot have a stay of proceedings. (Cushman agt. Martin, supra.) The motion is denied, without costs. |