Shaw v. Moore.

der any circumstances, for this plain reason, because an oath cannot possibly be any tie or obligation upon them." This proves either that Atkins misapprehended the words of the Chief Justice, or that, upon reflection, he thought proper to alter the expression, so as to make it consistent with the decision.

The great case of Omychund v. Barker, (it may well be called "great," for it relieved the common law from an error, that was a reproach to it,) establishes the rule to be, that an infidel is a competent witness, provided he believes in the existence of a Supreme Being, who punishes the wicked, without reference to the time of punishment. The substance of the thing is, every oath must have a religious sanction. Such being the common law in regard to infidels, it follows, a fortiori, that the same rule is applicable to a witness, who is a Christian; and the fact, that this Christian believes that the divine punishment will be inflicted in this world, and not in the world to come is immaterial, and in no wise affects the principle of the rule. It is a mere "difference of opinion," as to the true teaching of the gospel. This we find is the conclusion of the Courts in most, if not all, of the States of the Union where the question has been presented for adjudication. 15 Massachusetts Rep. 177; 2 Cushing 104; 18 Johnson 98; 5 Mason 18; 2 Alabama 354; South Carolina Law Journal 202; 13 Vermont 362.

It was insisted, in the argument, that although this may have been the rule of the common law, it is changed by our statutory provisions prescribing the forms of oaths, ch. 76 Rev. Code.

We think it manifest, by a perusal of the Statute, that it was not intended to alter any rule of law, but the sole object was to prescribe forms, adapted to the religious belief of the general mass of the citizens, for the sake of convenience and uniformity. Accordingly, the first section prescribes a form of oath as a general form, suited to such as hold the ordinary tenets of the Christian religion; that is, an oath, laying the hand upon "the Holy Evangelists," &c. The second section

Shaw v. Moore.

makes an exception in favor of those Christians who have conscientious scruples against taking an oath on the Holy Evangelists, and the form of oath is framed in reference to their belief, as to a "great day of judgment, when the secrets of all hearts shall be known." The third section makes an exception in favor of those Christians who are Quakers, &c., and the form is framed in reference to their peculiar belief, "swear not." This satisfies the words of the Statute, and the argument that it was also intended to change the law by prohibiting any one from being sworn except in one or other of the prescribed forms, proves too much; for, it would exclude both Jews, and infidels who believe in a God. We think it indecent to suppose that the Legislature intended in an indirect and covert manner to alter a well-settled and unquestioned rule of law, and, in despite of the progress of the age, to throw the country back upon the illiberal and intolerant rule which was supposed to be the law in the time of bigotry; for, it was every day's practice to swear Jews upon the Old Testament, and Omychund v. Barker had settled the rule that infidels are to be sworn according to the form which they hold to be most sacred and obligatory on their consciences.

If it be admitted, for the sake of the argument, that, besides prescribing forms for general use, the Legislature had the purpose of altering the common law, so as to exclude Jews and infidels, who believe in a God, and Christians, who do not believe in future rewards and punishments, from the privilege of taking the oaths which are required to enable them to testify as witnesses, or to take any office or place of trust or profit, in other words, to degrade and persecute them for "opinion's sake," then it is clear, that the statute, so far as this purpose is involved, is void and of no effect, because it is in direct contravention of the 19 sec. of the Declaration of Rights: "That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences."

We go further, and express the opinion, that if Omychund v. Barker had not relieved the common law from the reproach

Williams v. Griffin.

of holding Jews and infidels, who believe in a God, unfit to take an oath, treating them as "servants of the devils," because their belief differs from ours in regard to the attributes of the Being who created and governs the Universe, or if any part of that reproach was still left, the effect of this section of our declaration of rights, would be, to extirpate the error and tear it up by the roots.

It was said in the argument, "to be sworn as a witness is no privilege the person loses nothing by being incompetent." This is a narrow view of the question. If he be held incompetent as a witness on the ground that he cannot take an oath, it follows that he cannot swear to a book account. If an injunction is obtained, it must be made perpetual, because he cannot swear to his answer; nay, more, he cannot take the oath of office as a constable, sheriff, justice of the peace, judge, legislator or governor; in short, it would be the institution of a "test oath," towards which our revolutionary fathers had so just an abhorrence, and which is wholly repugnant to the tolerant and enlightened spirit of our institutions and of the age in which we live. There is no error.

PER CURIAM.

Judgment affirmed.

JOSEPH J. WILLIAMS AND WIFE vs. JOSHUA GRIFFIN et al.

The fact of the registration of a deed, without its having been proven, will not entitle it to be read in evidence.

ACTION OF TRESPASS q. c. f., tried before his Honor, Judge MANLY, at the Fall Term, 1856, of Beaufort Superior Court.

On the trial, a deed to Thomas Collins and Christian Reed, from Samuel and Thomas Gardner, was offered in evidence in behalf of the plaintiffs. It did not appear that this deed had ever been proved; there was an endorsement upon it of registration, but no endorsement or other evidence of its hav

Williams v. Griffin.

ing ever been proved. It was objected to as evidence for the want of probate, and excluded by his Honor. For which the plaintiffs excepted.

Plaintiff took a nonsuit, and appealed.

No counsel appeared for the plaintiff in this Court.
Rodman, for defendant.

NASH, C. J. The question presented in this case is scarcely an open one. The general provision made by the Act requiring deeds for lands to be registered, is that "no conveyance of land shall be valid unless it be acknowledged by the grantor, or proven upon oath before one of the Judges of the Supreme Court, or of the Superior Court, or in the County Court of the County where the land lieth, and registered by the public register of the County." Until a deed is proved, as by the Act directed, the public register has no authority to put it on his book; the probate is his warrant, and his only warrant for so doing. Burnett v. Thompson, 3 Jones' Rep. 113; Tooley v. Lucas, Ibid. 146; Lambert v. Lambert, 11 Ire. Rep. 162.

In this case the original deed was produced, upon which is a certificate of registration. The case states, however, that there was no evidence that it ever had been proved. If, upon this certificate of the register, the deed is to be received in evidence, the Act requiring probate is a dead letter, and the unauthorised act of the register gives efficacy to the deed as evidence. The case of Freeman v. Hatley, 3 Jones' Rep. 115, affirms this view of the question. The evidence there was admitted upon the peculiar circumstances of the case; the original deed was lost, and the records of the County Court of Montgomery, the County in which the land lay, were destroyed by fire. There is no error.

PER CURIAM.

Judgment affirmed.

Brannock v. Bushinell.

EDWARD BRANNOCK vs. HENRY BUSHINELL.

Where an action of debt is brought on a simple contract, no subsequent promise, however explicit, is sufficient to take it out of the statute of limitations.

ACTION OF DEBT, tried before his Honor, Judge PERSON, at the Fall Term, 1856, of Caswell Superior Court.

The action was upon an unsealed note, dated 20th March, 1844, due one day after date. The writ was issued on the 6th of October, 1853. The defendant pleaded the statute of limitations; to which plaintiff replied that, within the three years preceding the issuing of the writ, the defendant promised to pay the said note.

There was evidence tending to establish the plaintiff's replication; but as the case turned upon the form of action, it is not deemed necessary to state it.

It was agreed by the counsel in the Court below, that the jury should give their verdict for the plaintiff, subject to the opinion of the Court upon the question of law, whether the evidence was sufficient to take the case out of the operation of the statute of limitations, and that, in case he should be of opinion with the plaintiff, he should recover the amount found by the verdict, but, if of a contrary opinion, a judgment of non-suit should be entered.

The Court, being of opinion with the plaintiff, gave judgment accordingly; from which the defendant appealed.

Morehead, for plaintiff.

Hill and Bailey, for defendant.

BATTLE, J. An objection founded upon a reason which was not adverted to in the Court below, but which is insisted on in the argument here, is fatal to the plaintiff's claim, at least in its present form. The action is debt, upon a promissory note, and as such, no promise, however explicit, is sufficient to take it out of the operation of the statute of limitations.