Ross vs. LAPHAM. solely on the ground of technical propriety, but that truth may be stablished and always proclaimed in courts of justice. It is true at all the sanctions of human laws would attach to the atheist, who testifies falsely, as much as to a person of another character. The reason, then, for rejecting an atheist as a witness is, that the use and object of an oath administered to a witness is not to secure the temporal punishment of its violation, but that truth may be manifested. It is the witness's sense of the obligation imposed on hum which begets the legal assurance in his testimony, and makes it more improbable that he will swear falsely. The atheist has can celled this obligation. He is extra legem, and incompetent to be a witness. An incompetent witness is necessarily, in a legal point of view, an incredible witness; and if a juror is bound to give no credence to testimony, the law will not imply malice in [* 277 ] another, who refuses to place confidence in it. In every action for slander, the defendant has a right to show the general reputation of the plaintiff, in respect to objects comprised in the class or species of calumny complained of; otherwise justice can be done to neither party. Whatever may be shown, to discredit one compulsorily relating facts as a witness, must be received against him in an action. grounded on the truth of his testimony. For it were absurd to say that evidence may be adduced against a witness to discredit and nullify his testimony, and yet that, in an action for impeaching that testimony, that very evidence should be excluded as irrelevant. Mankind revolt from the atheist, and denounce him as unworthy of belief, not to be endured. Where, then, is the malice in uttering the common sentiments of mankind? It is true, he has all the legal rights of a citizen, and is entitled to the protection of his person and property from the law. But when he prosecutes for an injury to his reputation, what is the consideration for compensation? where the right or title to recover damages? The only allowable measure of damages is the danger of corporal suffering he inay be subjected to under the statute of perjury; nothing for loss of reputation, for ne can lose none; nothing for the injury done to his feelings, for all humane, social, and religious feelings and sympathies are dead in him. No oath binding the conscience of an atheist was administered to the plaintiff. A lifeless ceremony was performed over a dead carAs to any obligation the plaintiff felt himself under to declare the truth, the charge complained of is as if it had been made against one who had taken no oath. cass. It is competent for this Court, the main preserver of the public Ross vs. LAPHAM. peace and morals, to permit this evidence to go to the jury. The civil constitution of the state is expressly bottomed upon principles at war with those delineated in the motion. Common [*278] law is the approved * principles of reason and justice. That God exists is the highest dictate, and that he should be reverenced is the first law, of our nature. The atheist has stitled that dictate, and annulled that law. Suspicion, distrust, and disbelief, attach to whatever he says under oath. The evidence offered goes invincibly in diminution of damages. A good character is used to enhance the compensation for slander: may not the worst character among mankind go to lessen it? A verdict, which should make no distinction between the claims of a Christian and an atheist, in an action like the present, would be a libel on every thing that is venerable or estimable. The damages, to be exemplary, must be small. Nothing, but an insurmountable rule of law, could compel a Christian jury to give to an atheist in this action one cent damage. A charge of perjury does not defame him; it is only alleging that crime to have been perpetrated which all mankind believed would be perpetrated, when an opportunity presented. Noble, for the plaintiff. No one is bound to defend himself in a court of justice against charges not contained in the declaration of pleadings. The plaintiff was not obliged, indeed he could not, come prepared to answer a charge such as the defendant would have alleged against him. His general character, as a man of truth, he puts in issue, when he brings such an action as the present. But he is not held to disprove particular charges, whether of crimes, errors, or indiscretions, unless they are pertinent to the issue on trial, and he has had due and legal notice. It may be said that, with many people, perhaps with a great part of the community, it would not go further to impeach or lessen a man's credibility as a witness, that he was suspected of atheism, than that he was an avowed Universalist, or a believer in the doctrine of absolute irrespective decrees, in relation to the future condition of mankind. Per Curiam. It is a strong argument against the admission of the evidence offered by the defendant at the trial of this [* 279] cause, that, in the whole history of actions for slander, of which the books are so full, this point does not appear to have been ever taken. Indeed, on principle, independent of the authority which the silence suggested implies, we think the evidence inadmissible. The words charged are in themselves actionable, and the jury are the proper judges of the damages. The evidence has no bearing on the temporal consequence of the crime. It would Ross vs. LAPHAM. indeed be a singular defence, in a criminal prosecution for perjury, that the person charged with the crime was an atheist. On the other ground, too, that this evidence was a surprise upon the plaintiff, it was properly rejected by the judge. By commencing this action, the plaintiff put his general reputation at issue. He must be prepared to repel by evidence any attack on his character at large. But evidence of particular facts, however, if proved, it might affect his general standing in society, is not to be received. The particular offered in evidence had no tendency to make it more probable that the plaintiff had committed perjury, or to show it less injurious on the part of the defendant to have charged him with it. Motion for a new trial overruled. JAMES BIRCHARD, JUN., versus JOSHUA W. Bartlet. No action lies against one who had endorsed his name on a negotiable promissory note between other parties. THIS was an action of the case, in which the plaintiff declares on a promissory note, dated September 21, 1807, signed by one Benoni Webb, and payable to one Ebenezer Bartlet, or his order, on the 1st of April, 1803, with interest; and alleges that the defendant afterwards, being the owner of the said note, and being in possession of the same, by his endorsement thereon, acknowledged that he had sold and delivered the said note to the plaintiff, for value received, and promised him that the contents thereof. should be paid to him according to its tenor; and that, if it ** should not be so paid by Webb, he, the defendant, [* 280 ] would pay the said contents to the plaintiff on demand; that Webb never paid the same, nor the defendant, though he had notice, &c., and was requested, &c. The declaration also contained the usual money counts. In a case stated for the opinion of the Court, it was agreed that the note mentioned in the declaration was executed by Webb, and that it was endorsed in blank to the plaintiff, by the defendant, for a valuable and adequate consideration. At the time the note fell due, the plaintiff and defendant lived within four miles of each other in this county. Before the note became due, the said Webb removed into the state of New York, had ever since resided there, and left no property within this commonwealth; both the parties to this action VOL. XIV. 21 241 BIRCHARD vs. Bartlet. knowing where he resided at the time the note became due, and he being reputed to be a man of property. No demand was made by the plaintiff on Webb, nor any notice of non-payment given to the defendant, until about six weeks after the note fell due. Judgment was to be entered by default or nonsuit, as the opinion of the Court should be on the foregoing statement. [Note. Before the note was produced, the plaintiff had written over the defendant's name, endorsed on the note, an undertaking and promise conformed to the allegations in the declaration.] No argument was had. Per Curiam. This case does not come within any of the decisions which have been made by this Court upon the subject of written contracts. The defendant, whose name is placed on the back of the note, was no party to it; nor does it appear, from the facts agreed, how he became possessed of it. The note is in its form negotiable; but the payee never negotiated it; at least it does not appear that he endorsed it. The defendant cannot be considered as a surety or original promisor to the plaintiff, because the plaintiff was not the payee of the note. If he can be made liable in any way to the plaintiff [* 281 ] *it must be on account of some special contract, of which there is no evidence resulting from the facts agreed in the statement. It may be that, holding the note under a delivery from the payee, he delivered it to the plaintiff with his consent that the plaintiff should receive the money due on it. There appears no evidence of any contract whatever with the plaintiff by the defendant. If the plaintiff can produce evidence, that the defendant undertook to guaranty the payment of this note to him, the statement of facts may be discharged, and the parties go to trial. But if no other facts exist than those contained in the statement, the plaintiff must become nonsuit. (a) Pierce vs. Mann, 17 Pick. 244. --- (a) [Sampson vs. Thomson, 3 Met. 275. Sumner vs. Gay, 4 Pick. 312.- Moies vs. Bird, 11 Mass. Rep. 440, and note. White vs Howland, 9 Mass. Rep. 314. - Baker vs. Briggs, 8 Pick. 122. Tenney vs. Prince, 4 Pick. 385. - Scalenny vs. Hungerford, 2 Hill, N. Y. R. 80.- Dean vs. Hall, 17 Wend. 214. It would seen to be clear from the authorities that the defendant was liable to the plaintiff upon the endorsement. Bayley on Bills, 5th Lond. ed. 129-134. Tassell vs. Lewis, 1 Lord R. 743. - Bank of England vs. Newman, Ibid. 442. — Nichol Bon vs. Sedgwick, Ibid. 180.- ED.] 242 CASES ARGUED AND DETERMINED IN THE SUPREME JUDICIAL COURT, FOR THE COUNTIES OF HAMPSHIRE, FRANKLIN, AND HAMPDEN, SEPTEMBER TERM, 1817, AT NORTHAMPTON. PRESENT: HON. ISAAC PARKER, CHIEF JUSTICE. LYMAN TAFT versus THE INHABITANTS OF MONTAGUE. Where one had contracted, for a price agreed, to erect a bridge in a particular manner, and he executed it so unfaithfully that, although it served its intended use for a time, yet, from the manner of building it, it gave way, and was finally carried away by a flood, he could not recover on the special contract, because he had not fulfilled it; nor on a quantum meruit, because the defendants had received no benefit from his labors. THE action was assumpsit. The declaration contained several counts; one of which, and upon which the plaintiff relied, was upon a special contract to build a stone bridge, for the defendants, over a small stream of water running across a highway in Montague, for which the defendants were to pay one hundred and nine dollars and twenty-five cents; and the bridge was to be built in the manner particularly described in this count. There was also a count upon a quantum meruit for the same services. |