Field, C. J. concurring.
It would subserve no useful purpose to go through the pleadings and proofs in this case. It is a bill for divorce, filed by the husband against the wife, upon charges of adultery and extreme cruelty. Upon either of these charges, if sustained, the plaintiff was entitled to a decree. The learned Judge below ordered special issues to a jury. These issues involved the principal matters of crimination and recrimination involved in the pleadings. The jury found for the plaintiff upon the two principal allegations of the complaint, and, upon this finding, the Court decreed for the plaintiff. We are asked to review the decree upon several grounds, no one of which is tenable.
1. It was submitted to the jury to find, whether the plaintiff was, at the time of his marriage with the defendant, the lawful husband of one Frances, or Frances Bartlett. A letter purporting to be that of the plaintiff to this woman was offered in proof to show his relations to her. This letter was admitted. It is contended that this letter affords proof of this supposed relation. But the letter, on the face of it, is not unequivocal; and if it were, it is but the admission of the plaintiff—not conclusive proof of the facts recited; and other and seemingly contradictory proof was offered, tending to show that the fact admitted was not true. Conceding that a marriage may be proved in this way in a case of this kind— which is going a good way—yet this concession will not help the defendant; for we cannot relieve her from the rule we have often laid down, and which is indispensable to the discharge of our ap*612pellate duties, that, in a case of conflicting proofs upon issues of fact, we cannot sit in judgment upon the proofs. It is useless to trouble us with appeals upon such questions ; for we have neither the time nor the means of satisfactorily adjusting such controversies. We do not see the witnesses nor hear their testimony ; and we are unable to judge, for want of this necessary opportunity, of the relative weight to which these statements are entitled. The case then, as it stands, is simply the case of a conflict of testimony upon disputed facts, upon which case a jury and the Judge below' have passed; and this is absolutely conclusive upon us.
2. The Court did not err in allowing the witness, Cruz, to testify. The witness seems to have been a foreigner. He was not disqualified by the mere fact that he did not, when first produced, understand the meaning of the w'ord obligation, as applied to an oath; when this was explained, and the witness made to understand the obligation, it was enough to qualify him, if he were otherwise competent. The Practice Act, section 392, provides “ that no person offered as a witness shall be excluded on account of his opinion on matters of religious belief,” and this follows the 4th section of the 1st Article of the Constitution. We can assign to this language no other import than that a witness is competent without any respect to his religious sentiments or convictions; the law leaving this matter of competency to legal sanctions, or, at least, to considerations independent of religious sentiments or convictions.
3. ISTor is the point better taken, that the witness, Chase, was asked certain questions as to his relations with, and conduct toward, the defendant, on his cross-examination. Under the circumstances this was proper, as affecting the credit of the witness, and as enabling the jury to see what effect these things had, or might have had, upon his evidence.
Judgment affirmed.
On petition for rehearing, Baldwin, J. delivered the opinion of the Court—Field, C. J. concurring.
We have gone over the testimony again in this case. It would subserve no useful purpose to recapitulate it, nor to comment on it. Both that of the plaintiff and of the defendant was precisely of that *613character which could only be satisfactorily passed on by a jury. The counsel is altogether mistaken in saying that there is no conflict in the proofs of the recriminatory charges of defendant. The testimony of Welch, which is the main proof in this respect, was mainly circumstantial, and much would depend upon the manner, bearing and character of the witness, as well as the peculiar nature of his disclosures. He was not unimpeached, both directly and by circumstances, and even if not impeached, we could not on such an issue usurp the province of the jury by assigning conclusive force to the testimony of such a witness.
The questions were peculiarly issues of fact for a jury, and we should be reversing our whole course of decision, if we interfered with their finding in opposition to the ruling of the learned Judge who heard the proofs.
Rehearing denied.