June, 1829.

#### The State v. Harvey Sawyer.

From Currituck.

'By the act of 1791, (Rev. ch. 354) neglecting to keep up a sufficient and lawful fence is rendered indictable ; but the Defendant must be convicted upon the testimony of three “ indifferent” witnesses. Held that the act introduced no new rule of evidence, but that the indifferent is synonymous with the word competent.

The Defendant was indicted under the act of 179Í» (Rev. ch. 354,) for not keeping up a lawfui fence as prescribed by the act of 1777. (Rev.ch. 121.) On the tria!* the case for the prosecution was made out by three witnesses; but one of them on his cross examinaiion, admitted that he was the owner of the land occupied by the Defendant, and which was charged in the indictment as defectively fencedj that he had leased it to the Defendant, and that his stock liad broken into the enclosures of the Defendant, and had been injured by him. His honor Judge StraNge ruled, that the witness was indifferent within the meaning of the act of 1791, and left thfe case upon the facts to the jury, who returned a verdict for the State, and the Defendant appealed.

The case was argued at December Term last, by Mr. Attorney-General Jones, for the State, and by Gaston, for the Defendant;

but was continued over until this term on account of the illness of the late Chief-Justice.

Hall, Judge.

The objection in this case is, that a witness was examined, who was not competent under the act of Assembly, because he was not indifferent. (Rev, ch. 354.) It is true, the act requires witnesses to be indifferent, but unfortunately it gives no exposition of this term. Neither docs it set forth its import. For my own. part, I see too small a shade of difference between that term, and the term competent, to undertake to give to either of them, a meaning essentially distinct from the. *214other, The import of the term competent is well known to tiie profession. I must take it, that the Legislature meant the same thing, when they used the term indiffer-If so, it may be said, that three indifferent witnesses were introduced on the trial, and that the requisition of the act was complied with. It is not to be believed that the Legislature intended to introduce a new rule of evidence.

Per Curiam. — Let the judgment be affirmed.