Whitaker v. Young

Curia. The defendants are answerable as heirs to the extent of their inheritance only; and, as between each oth er, are liable to contribute on scire f acias. If some are not warned, those who are must plead it, in the first instance, or they lose the benefit of contribution. (2 Saund. 9, n. 10, and the cases there cited.) This principle applies to the present case. As two only are taken, and it appears on the face of the declaration that three are liable, there is no need of the non-joinder being shown by plea. The defendant may demur. (1 Chit. Pl. 29, and the cases there cited.) The joint debtor act (1 R. L. 521, s. 13,) has no application to an action against heirs. There must, therefore, be judgment for the defendant, with leave to amend on payment of costs. Judgment for the defendant. Supplement to the note (a), ante, 432, 436, upon the question, Abe Universalists admissible witnesses ? I remarked in the note to which this is a supplement, that in the Courts of Common Pleas and Nisi Prius, in several counties of this state, the question as to the admissibility of witnesses, who adhere to the creed of Universalism, has been frequently agitated. Some circumstances led me to suppose that this had oftener been the case in the 5th circuit, than in any other. Among these circumstances, was that of having seen the history of a public meeting in one of the counties of that circuit, in which the question was canvassed, as a matter which involved the rights of great numhers, and in which that respectable lawyer and philanthropist, Mr. F. C. White, was mentioned as having taken a leading part in the discussion. These considerations led me to 'request of the Hon. N. Williams, Judge of that circuit, an account of his views in relation to this question, if it bad arisen and been decided by him; and I am indebted to this able jurist for his notes of the following opinion, upon the question being presented in a [573] case before him, while on the 5th circuit. This did not come to hand till after my note had been printed; but I hasten to give it the earliest possible place in these reports. Williams, Circuit Judge, delivered the opinion of the Court. The point may be considered as open in this country, unless the opinion upon it given by the late learned Chief Justice, in the case of Jackson v. Gridley, (18 John. Rep. 103,) is considered as conclusive. The rule, as adopted in that case, is this, “ That infidels who do not believe in a God, or if they do, do not think that he will either reward or punish them, in the world to come, cannot be toitnesses.” That an infidel who believes in a God, and also in rewards and punishments in a future state, may be a witness, is admitted in all the authorities, (except in Co. Litt. 6 b, which is certainly not law at this day,) and the question now is, simply, Whether a man believing in a God, and in rewards and punishments in this world only, may be a witness. In the case of Jackson v. Gridley, the witness had declared, not only that he did not believe in a future state of rewards and punishments, but that when he died there was an end of him; that man was like the beasts, and that he knew of no being superior to man. Here, then, was a complete atheist; one who did not feel any responsibility to any superior being. Certainly, such a man could not be allowed as a witness; and the opinion delivered on the point in question, was not called for in that case. If the witness had believed in the Supreme Being, and in a responsibility to him for his actions, either in this, or a future state, the case would have been altogether different. But, in order to present the precise point in question, a witness must be offered who believes in a God, and in punishment by him in this life only. Ought a man with such a creed, in other respects competent, lo be a witness 1 This is the question. The cases reported in Strange, 1104, and Leach, 64, do not appear to me to touch this precise point at all. Neither do any of the opinions reported in the great case of Omichund v. Barker, except that of Chief Justice W.illes. Unfortunately, his opinion is differently reported in Atkyns’ and in Willes’ Reports. And it would seem that the writers upon evidence, since that case was decided, have generally followed the report of Atkyns, which was published long before the publication of the opinion of Ch. J. Willes, from his own manuscript; and it is evident that Atkyns must nave reported from his own notes of the opinions delivered in that case, because he has given that of Willes rather loosely, and materially variant from the one left by that learned Judge in his own handwriting. As this opinion of Willes appears to have been relied upon by all the law writers upon the subject, as well as by the late Chief Justice in the case of Jackson v. Gridley, it becomes highly important to know what it was, as delivered, and preserved for future times by himself. This opinion, as reported by Atkyns, (1 Atk. 45, and in ed. of 1781, p. 55,) was this: “ And though I am of opinion that infidels who believe a God and future rewards and punishments in the other world, may be witnesses,. [574] yet I am clearly of opinion that if they do not believe a God, or future rewards and punishments, they ought not to be admitted as witnesses.” In the opinion, as reported in Willes’ Reports, and which appears to be a serious, learned and elaborate one, the Chief Justice lays down (p. 545) this rule upon the point in question: K And, therefore, nothing but the belief of a God, and that he will reward and punish us according to our deserts, is necessary to qualify a man to take the oath.” Again he says, (p. 549) “ 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,” &c. And to make it clear, beyond a doubt, that he does not mean future, he says, by way of illustration, (pp. 550, 1,) “ Supposing an infidel, who believes a God, and that he will reward and punish in this world, but does not believe a future state, be examined on his 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 an infidel as to a Christian, because he is plainly not under so strong an obligation.” From the foregoing, it is evident to me that Atkyns has not discriminated nicely in reporting the opinion which has been so much relied upon; and it is not pretended that any of the opinions of the other Judges in the same case touch this point at all. And upon the whole, I cannot but yield my conviction, that according to the law as laid down by Ch. J. Willes, it is not necessary, in order to render a man a competent witness, that he should believe any thing more than that there is a Supreme Being, and that he will reward and punish, either in this or in a future life. Jews, Mahomedans and Hindoos, have all been admitted as witnesses in England; and it would seem unchristian as well as unjust, so to extend the rule in this country, as to exclude those Christians who believe in God, in a future state, and salvation through Jesus Christ, and in punishments in this world, though not in the next.