Ward v. Herrin.

ed on the premises, which was occupied by Crayton, as a dwelling, from some time in that year, up to the year 1847, or 1848, when he moved from it, with his family, and lived elsewhere "for twelve months or thereabouts ;" that no person succeeded him in that occupation, and when he returned to it, at the end of that period, he found it vacant. Crayton then resumed and continued his occupation until 1851, at which time this suit was brought. One Conrad Crayton testified that during the year, while William Crayton was absent from the land, "he frequently saw persons working for gold on it; that he saw the branch muddy as though used for mining purposes, but could not say that the operations were continuous."

The Court, in general terms, stated the evidence to the jury, but did not, in express terms, call their attention to the testimony of Conrad Crayton. For this defendant excepted.

The Court expressed an opinion that the interval of twelve months or thereabouts was fatal to the defendant's title. For which the defendant further excepted.

Verdict and judgment for the plaintiff. Appeal.

Bryan, Moore and Dargan, for plaintiff.

No counsel for defendant.

BATTLE, J. The first question raised by the defendant in his bill of exceptions, has been too often decided by this Court to be now open for argument. A mere omission by the Judge to charge the jury upon a particular point, where no specific instructions upon it have been asked, is not error. Torrence v. Graham, 1 Dev. and Bat. Rep. 288; State v. O'Neal, 7 Ire. Rep. 253; Arey v. Stephenson, 12 Ire. Rep. 34.

The second exception is equally untenable. The interval of "twelve months or thereabouts" in the actual occupation of the land by William Crayton, was fatal to the defendant's claim of title upon an adverse possession of seven years under color of title. Holdfast v. Shepherd, 6 Ire. Rep. 361. In this respect, a claim by means of an adverse possession under

Shaw v. Moore.

the statute of limitations, differs essentially from one by means of a possession, raising the presumption of a grant. Reed v. Earnhart, 10 Ire. Rep. 516; Taylor v. Gooch, 3 Jones' Rep. 467.

Nor can the testimony of Conrad Crayton help the defendant. The operations of the gold-hunters, spoken of by this witness, on the land, during William Crayton's absence, were not such as to constitute an adverse possession under the statute. The witness could not say they were continuous, and they had quite as much the appearance of distinct trespasses, as of an actual occupation of the land under a claim of title. This Court has decided, after a review of all the cases on the subject, that the cutting of trees and the feeding of hogs upon a tract of land susceptible of other uses and enjoyment, under a color of title for seven years, did not constitute such a possession as would bar an entry. Loftin v. Cobb, 1 Jones' Rep. 406.

The acts of the gold-hunters, as proven in this case, ought not to have any greater efficacy.

There is no error, and the judgment must be affirmed.

PER CURIAM.

Judgment affirmed.

H. M. SHAW et al. propounders vs. JOHN A. MOORE et al. caveators. One who believes in the existence of a SUPREME BEING, and that God will punish in this world for every sin committed, though he does not believe that punishment will be inflicted in the world to come, is a competent wit

ness.

ISSUE of devisavit vel non, tried before his IIonor, Judge BAILEY, at the Fall Term, 1856, of Currituck Superior Court.

A script, as the last will and testament of Alfred Perkins, was offered for probate. It had two subscribing witnesses, one of whom was admitted by the caveators to be competent; the other was objected to on account of his religious belief.

Shaw v. Moore.

He professed "to believe in the obligation of an oath on the Bible; in God and Jesus Christ, and that God would punish in this world all violators of his law; that the sinner would be inevitably punished in this world for each and every sin committed, but that there would be no punishment after death, and that in another world all would be happy and equal to the angels."

His Honor held the witness to be competent; for which the caveators excepted.

Verdict and judgment for the propounders. Appeal by the

caveators.

Heath, for the propounders.

Smith and Pool, for the caveators.

PEARSON, J. The case presents this question: Is a person who "believes in the obligation of an oath on the Bible; who believes in God and Jesus Christ, and that God will punish in this world, all violators of his law, and that the sinner will inevitably be punished in this world for each and every sin committed; but there will be no punishment after death, and that in another world all will be happy and equal to the angels"-a competent witness?

The law requires two guaranties of the truth of what a witness is about to state; he must be in the fear of punishment by the laws of man, and he must also be in the fear of punishment by the laws of God, if he states what is false; in other words, there must be a temporal and also a religious sanction to his oath. In reference to the first, no question is made; but it is insisted, that the religious sanction required, is the fear of punishment in a future state of existence.

This position is not sustained by the reason of the thing, for, if we divest ourselves of the prejudice growing out of preconceived opinions as to what we suppose to be the true teaching of the Bible, it is clear that, in reference to a religious sanction, there is no ground for making a distinction between the fear of punishment by the Supreme Being in this world, and

Shaw v. Moore.

the fear of punishment in the world to come; both are based upon the sense of religion. If, on the one hand, it be said, that there is, in the fear of punishment in a future state of existence, an awful, undefined dread, and on the other, that from the constitution of our nature, we fear more that punishment which is near at hand, than that which is distant, the reply is, this is matter of speculation merely, and has no bearing upon the question, because the efficacy of the fear of punishment in either case, depends upon the degree of the belief as to the certainty of that punishment; so that, there can be, upon reason, no ground for making a distinction. The rule of law which requires a religious sanction, is satisfied in either case.

It is true, that in the old cases it is held to be the common law, that no infidel, (in which class Jews were included,) could be sworn as a witness in the courts of England, which was a Christian country; and Lord COKE gives this as his opinion, in which he says all the cases agree, and he assigns as the reason on which the law is based, "All infidels are in law perpetui inimici; for, between them, as with the devils, whose subjects they be, and the Christian, there is perpetual hostility." This reason, to say the least of it, is narrow-minded, illiberal, bigotted and unsound.

One excellence of the common law is, that it works itself pure, by drawing from the fountain of reason, so that if errors creep into it, upon reasons, which more enlarged views and a higher state of enlightenment, growing out of the extension of commerce and other causes, proves to be fallacious, they may be worked out by subsequent decisions. Accordingly, it is laid down by Lord HALE, notwithstanding the opinion of Coke and the old cases, to be the common law, that a Jew is a competent witness, and may be sworn on the old Testament, and such has ever since been taken to be the law. Afterwards, in the case of Omychund v. Barker, 1 Atk. 19, and also in Willes' Report, 538, it was decided by the Lord Chancellor, with the assistance of Chief Baron PARKER, Chief Justice WILLES and Chief Justice LEE, that a Gentoo, who was an infidel, who did not believe in either the Old or New Tes

Shaw v. Moore.

tament, but "who believed in a God, as the Creator of the Universe, and that he is a rewarder of those who do well, and an avenger of those who do ill," is, according to the common law, a competent witness, and may be sworn in that form which is the most sacred and obligatory upon his religious sense. The case does not show whether, according to the Gentoo religion, rewards and punishments are to be in this world or in the world to come. The decision was made without ascertaining how the fact was; so, it must have been considered by the Court to be immaterial; no reference is made to any distinction in regard to the time of punishment by any of the counsel in the long and full arguments made on both sides; nor is there any intimation or allusion to such a distinction in the opinions of Chief Baron PARKER, Chief Justice LEE and the Lord Chancellor. The only thing, throughout the whole case, which suggests to the mind the existence of such a distinction, is an expression ascribed to Chief Justice WILLES, by Atkins in his report of this case, viz., "I am clearly of opinion, that if they (infidels) do not believe in a God, or future rewards and punishments, they ought not to be admitted as witnesses." This expression is inconsistent with the decision of the case in which Willes and the others all fully concurred, for, there was no allegation or proof that the witness believed in future rewards and punishments; so there must be a mistake. The Chief Justice either used the word. "future" inadvertently, and without, in his own mind, attaching any force to it, or Atkins misconceived his meaning; and yet this expression is referred to by most of the English writers who treat of evidence, and is the foundation of all the error on this subject. Some fifty years after the case was reported by Atkins, the opinion of Chief Justice WILLES, drawn out at length, in his own hand-writing, was found among his manuscripts, and is reported in Willes. The words in this manuscript are: "I am clearly of opinion, that such infidels, (if such there be,) who either do not believe in a God, or if they do, do not think that he will reward or punish them in this world or in the next, cannot be witnesses in any case, or un