ALBANY, October, 1823.

Butts

V.

.Swartwood.

which he offered to turn out, and which Butts refused to take, and no attempt was inade at the trial to contradict him.

punishments in another world was, therefore, an obiter dictum; and wholly unnecessary to the decision of the cause then before the Court.

I should, notwithstanding, pay great deference to this opinion, as coming from the pen of such an able jurist, was I not satisfied he had fallen into the same error with many of the English writers, in relation to this ques

tion.

The foundation of all the error on this subject, both in this country and in England, was the misreporting of the opinion of Chief Justice Willes as delivered in the case of Omichund v. Barker, in February, 1745. This case was first reported by Atkyns, in 1765. In that report Ch. J. Willes is made to say, "I am clearly of opinion that if they do not believe in a God or future rewards and punishments, they ought not to be admitted as witnesses." And this expression as reported by Atkyns is referred to by most of the English writers in relation to this question. But Willes, in reality, did not say any such thing; but on the contrary expressly declared that, in his opinion, an infidel who believes a God and that he will reward and punish in this world, but disbelieves a future state, may be a witness. His opinion in Omichund v. Barker, was drawn out at length by himself, and was left among his other manuscript decisions; but it was not published till 1799, more than fifty years after it was delivered, when Willes' Reports were collected from the manuscripts of that learned Judge, by Mr. Charles Durnford.

In the opinion as written by himself, and correctly reported by Durnford in Willes' Reports, he says, "I am clearly of opinion that such infidels, if (any such there be) who either do not believe a God, or if they do, do not think that he will either reward or punish them in this world or in the next, cannot be witnesses in any case, nor under any circumstances; for this plain reason, because an oath cannot possibly be any tie or obligation upon them." It is somewhat remarkable that the rule of exclusion as laid down by Ch. J. Spencer in Gridley's case, is in the very language of Willes, except the leaving out of the words, "in this world or in the next," and substituting therefor, "in the world to come." To show that if there is any tie upon the conscience of the witness his infidelity goes to his credit, and not to his competency, in another part of his opinion Ch. J. Willes saysSuppose an infidel who believes a God and that he will reward or punish him in this world, but does not believe a future state, be examined on oath, as I think he may; and on the other side to contradict him a christian is examined who believes a future state and that he shall be punished in the next world as well as in this, if he does not swear to the truth; I think that the same credit ought not to be given to the infidel as to the christian, because he is plainly not under so strong an obligation."

Such I understand to be the common law of England as it existed at the time of our revolution; and which, by the constitution, is made the law of

The purchase of Swartwood, therefore, could not have been ALBANY, with intent to defeat the execution. The question of fraud October, 1823.

this state. And this is not a hasty opinion formed during the trial of this cause, but from having examined the subject heretofore. In this opinion I believe also I am supported by most if not all of the Circuit Judges.

There is nothing, in the case before the Court, to show that the creed of this witness is materially variant from that of a considerable class of the universalians, who believe in the existence of a God, in the authenticity of the scriptures, and in the divinity of the Saviour, but deny that there is any punishment for the wicked, after this life. Until the contrary is shown, we are bound to presume he believes in the existence of a God, who will punish the wicked, in this life. In the view I have taken of the subject, this would render him a competent witness; and as I have before observed, if his creed is any worse than this it is incumbent on the defendant to show that fact. And however much I may regret the existence of a creed which may jeopardize the future happiness of its possessor, the rules of law and rights of conscience must not be infringed. The witness must therefore be sworn, and the jury are the proper judges of his credibility.

E. B. Morehouse, (Dist. Att'y) for the People.

S. Starkweather, counsel for defendant."

The opinion of Ch. J. Willes, as reported by Dunford, is remarked by the reporter as having been taken from the original manuscript and in the Chief Justice's own words. See the preface to Willes' Reports, and the opinion at length commencing at the 540th page. The case in M'Nally is evidently copied from the report of the case by Atkyns; and Wooddeson refers to the same report. (3 Wood. 279.)

Lord Chancellor Hardwick says "all that is necessary to the validity of an oath is an appeal to the Supreme Being as thinking him the rewarder of truth and the avenger of falsehood. (1 Atkyns, 48.)

In that valuable work, entitled, Introduction to the law relative to trials at Nisi Prius; compiled by Mr. Bathurst, (afterwards Lord Apsley,) and republished, by the late Mr. Justice Buller, in 1772, the law is thus laid down: "Infidels cannot be witnesses; i. e. such who profess no religion that can bind their consciences to speak truth. But when any person professes a religion that will be a tie upon him, he shall be admitted as a witness, and sworn according to the ceremonies of his own religion. (Buller's N. P. 292.) Professor Wooddeson, speaking of the case of Omichund v. Barker, says, "two of the learned Judges expressed themselves, clearly, of opinion that a professed atheist could not be a witness." And the professor thereupon adds, "the case of men wholly without religion (if any such there be) may justly be thought a reasonable and lawful objection to bearing testimony in any cause or trial whatsoever. And this we may set down as the first general exclusion, from giving evidence known to our laws." (3 Wood. 282.) In 1818, the Supreme Court of Massachusetts de

Butts

V.

Swartwood.

ALBANY, depends upon the motive. The non-delivery of the bureau October, 1823. is only one circumstance in proof of fraud; and it is accounted for. (Beals v. Guernsey, 8 John. 446. Wickham v. Miller, 12 John. 320.)

Tuttle

V.

Hunt.

Judgment affirmed.

cided that the disbelief of a witness, in a future state of existence, went only to his credibility and not to his competency. (Hunscom v. Hunscom, 15 Mass. Rep. 184. The Supreme Court of Errors in Connecticut, in 1809, decided, that a witness who did not believe in the obligation of an oath and a future state of rewards and punishments, or any accountability after death for his conduct, was by law excluded from being a witness. That it would be idle to administer an oath to a person who disregarded its obligation. But that every person who believes in the obligation of an oath, whatever may be his religious creed, whether Christian, Mahomedan or Pagan, or whether he disbelieves them all, may testify in a Court of Justice, being sworn according to that form of oath which, according to his creed, he holds to be obligatory. (Curtis v. Strong, 4 Day's Rep. 55.)

By the "act concerning oaths," '1 R. L. 386, s. 15,) any person having conscientious scruples as to the mode of administering an oath, on the gospels, may, with his hand uplifted, swear by the ever-living God, and shall not be compelled to lay his hand on or kiss the gospels.

I am not aware that there is any case, either in this country or in England, where it has been expressly decided that a disbelief in a future state of rewards and punishments was, alone, sufficient to exclude a witness.

See further on this subject, as to the competency of witnesses, on the ground of infidelity, and as to the manner of proving it, Phillips' Evidence, 16 to 20; Denn v. Vancleve, (2 South. Rep. 652;) and the opinion of the Judges, in the Queen's case, (2 Broderip & Bingham, 284.)

The plaintiff in a jus

may serve his

TUTTLE against HUNT.

În certiorari to a Justice's Court. The action was tro

tice's court ver, in the Court below, by Hunt against Tuttle, for a quantity of wheat, which the plaintiff claimed to have levied upeither where on, as a constable, under an execution. The suit was com

own summons,

he is himself a

constable or

specially deputed for the purpose.

Admitting evidence of a plaintiff's declaration in his own favor, if objected to, is fatal on error, though the court below direct the jury to disregard it.

Keyser

V.

Shafer:

menced by summons, which was served by the plaintiff ALBANY, October, 1823. himself, and returned thus: "Personally served, August 29th, 1822." Both the service and return were objected to as insufficient, but the objection was overruled. Issue being joined, the cause was tried by jury; and on the trial, the Justice allowed the plaintiff's declaration, that he had levied upon the wheat, to be given in evidence, tho' objected to, but after the evidence was given, he directed the jury not to regard it.

R. Closset, for the plaintiff in error.

H. Baldwin, contra:

Curia. The service of the summons by the plaintiff himself was good. The rule adopted in Bennet v. Fuller, (4 John. Rep. 486,) is this: that where no bail is exacted the Sheriff may serve a capias in his own favor; and any other plaintiff may, under similar circumstances, be deputed to serve his own process. The return was sufficient. (Legg v. Stillman et al. ante, 418.) But the error in admitting proof of the plaintiff's declaration is fatal, though the Jusice directed the jury to disregard it. (Penfield v: Carpenter, 13 John. 350.)

Judgment reversed.

KEYSER against SHAFER.

ON certiorari to a Justice's Court. Shafer declared against A declaration in general inKeyser in the Court below, thus: "Plaintiff declares against debitatus asthe defendant for one barrel of salt, $5; one note of hand- sumpsit in a " justice's court bal. of accounts for different kinds of liquors-claims $50." is good, on geTo this declaration the defendant interposed a general neral demurrer, though it demurrer. The plaintiff then discontinued, or entered a contain neither nolle prosequi, as to all the causes of action except the account for the salt, and joined in demurrer. Judgment to pay. for the plaintiff. The defendant contended; in the Court below, that the declaration was bad, because it contained neither time nor place, nor any request to pay for the salt. 56

VOL. II.

time nor place, nor any request

(a) In Timmerman v. Morrison, (14 John. 369,) objections similar to those overruled here, were allowed upon special demurrer.

n an action

upon a war

chattel, it is

not necessary

ROBERTS against MORGAN.

ON certiorari to a Justice's Court. Assumpsit by Morgan ranty of a against Roberts, in the Court below, on a warranty of a horse upon an exchange of horses; and one question was, to prove that whether a warranty was proved. The plaintiff told the derant was used. fendant that he would not exchange, unless the defendant Any affirma- would warrant the horse to be sound, to which the defendant

the word war

tion amount

ing to a war- answered, "he is a sound horse except the bunch on his leg." ranty is suffi- The plaintiff gave proof tending to show that the horse had the glanders. Verdict and judgment for the plaintiff.

cient.

W. Crafts for the plaintiff in error.

J. Ruger, contra.

SAVAGE, Ch. J. in delivering the opinion of the Court, said there was no necessity to show that the word warrant was made use of. Any affirmation amounting to it is sufficient.

Judgment affirmed.

END OF OCTOBER TERM.