OATH.
Persons infamous, i.e. those who have com mitted and been legally convicted of crimes the niiture and magnitude of which show them to be insensible to the obligation of an oath. See INFAMY. Such crimes are enu merated under the heads of treason, felony, and the crimen falsi. 1 Greenleaf, Ev. 373 ; CRIMEN FALSI ; 2 Dods. Adm. 191.
4. The only method of establishing in famy is by producing the record of convic tion. It is not even sufficient to show an admission of guilt by the witness himself. 9 Cow. N. Y. 707; 2 Mass. 108; 2 Mart. La. N. s. 466 ; 1 Starkie, Ev: 3d Am. ed. 144. And pardon or the reversal of a sentence restores the competenay of an infamous person, unless where this disability. is annexed to an of fence by a statute in express terms. 1 Greenleaf, Ev. 378 ; 2 Salk. 513 ; 2 Har grave, Jurid. Arg. 221.
This exclusion on account of infamy or 'defect in religious belief applies only where a person is offered. as a witness. 1 Bost. Law Rep. 347, 348 ; 1 Greenleaf. Ev. 374; 2 Q. B. 721. But wherever one is a.party to the auit, wishing to make affidavit in the usual course of proceeding, and, in general, wher ever the law requires an oath as the condi tion of its protection or its aid, it presumes conclusively and absolutely that all persons are capable of an oath. Starkie, Ev. 393 ; Bacon, Abr. Evigence ; Jacob, Law Diet. Evidence ; 1 Phillipps, Ey. pp. 1-25, and Vowen and Hill's Notes, nn. 1-18 ; 1 Ashm. Venn. 57.
Slaves were generally held incompetent to testify, by statutory provisions, in the slave states, in suits between white persons. 7 T. B. Monr. Ky. 91 ; 4 Ohio, 353 ; 5. Litt. Ky. 171 ; 3 Harr. & J. Md. 97 ; 1 M'Cord, So. C. 430.
And, again, in saying that aIl persons may be witnesses, it is not meant that all persons may testify in all cases. The testimony of such as are generally qualified and competent under other circumstances or as to other matters is sometimes excluded out of re.gard to their special relations to the cause in issue or the parties, or froin, some other circum stances not working a general disqualifica tion.
6. Parties to the record are not compe tent witnesses for themselves or their ors. See Conn. Comp. Stat. 1854, 95. ,1 l41 ;
Ohio Stat. 1850, Mar. 3, 1. 2 : Rev. Stat. 1846, c. 102, 100 ; 3 N. Y. Rev. Stat. 3d ed. 769 ; Wisc. Rev. Stat. 1849, c. 98. if 57, 60 ; Nixon, N. J. Dig. 1855, 187 ; Mo. Rev. Stat. 1845, e. 93, 24, 25 ; Mass. Gen. Stat. 1860, 673 ; Me. Rev. Stat. 1857, c. 82, fi 78, 83 ; N. 11. Act of 1857, c. 1952 ; R. L Rev. Stat. 1857, c. 187, 34. Nor are they compellable to testify for the adverse party, Bingh. 395 ; 20 Jolms. N. Y. 142 ; 21 Pick. Mass. 57 ; 11 Conn. 342 ; but they are com petent to do so; although one of several co suitors cannot thus become a witness forthe adversary without the consent of his asso ciates. 1 Grrecnleaf, Ev. 354; 12 Pet. 149 ; 5 How. 91 ; 6 Humphr. Tenn. 405 ; 3 Washb. Vt. 371. Regard is bad not merely to the nominal party to the record, but also to the real party in interest ; and the former will not be allowed to testify for the adverse side without the consent of the latter. 1 Green leaf, Ev. if 329-364 ; 16 Pick. Mass. 501 ; 20 Johns. N. Y. 142 ; 12 Conn. 134.
ln some jurisdictions a party has the right of compelling his adversary to answer inter rogatories under oath, as also to appear and testify. And, in equity, parties may recipro cally require and use each.other's testimony; and the answer of a defendant as to any matters stated in the bill is evidence in his own favor. 1 Greenleaf, Ev. 329 ; 2 Stoiy, Eq. Jur. 1528 ; Greeley, Eg. Ev. 243.
There are other exceptions to this rule. Cases where the adverse party has been guilty of some fraud or other tortious and unwar rentable act of intermeddling with the com plainant's goods, and no other evidence than that of the complainant himaelf can be had of the amount of darnage,—eases, also, where evidence of the parties is deemed essential to the purposes of public justiee,• no other evidence being attainable,—are such excep tions. 1 Greenleaf, Ev. 348 ; 1 Vern. Ch. 308 ; 1 Me. 27 ; 11 id. 412. See 12 Mete. Mass. 44 ; 6 Watts & S. Penn. 495 ; 3 Mich. 51 ; 10 Penn. St. 45.