text:
    WRIGHT vs SWAN.
    1. No entry will create a legal title to lands, adverse to the go - vernment.
    2. A purchaser of lands from the United States, before patent, has an inchoate legal title, which may be conveyed to a grantee of the purchaser, in the same manner as any other legal title, and the estate will be transferred by such conveyance.
    Error to the Circuit court of Montgomery county.
    Trespass to try titles. At the March term of. the aforesaid court, the defendant in error declared against the plaintiff, of a plea of trespass vi et armis, to try titles, &c., for that the defendant, theretofore, to wit, on the twenty-second day of December, eighteen hundred and thirty-five, broke and entered the close of plaintiff, situate, lying and being in the county aforesaid, and known and described as follows, to wit; The East half of the North-east quarter of section ten, in township fifteen, of range nineteen, containing seventy-nine acres and seventy-five hundredths of an acre, and then and there ejected, expelled, amov-ed, and put out said plaintiff from the close aforesaid, and had, ever since, kept possession of the same, and had ejected, expelled, amoved, put out and dismissed the said plaintiff, from the said land, whereunto he claimed title- — to the damage of plaintiff, &c., who sued as well to recover possession of said close, and to try title thereto, as to recover damages for the detention, Sec.

    And for that, whereas, said plaintiff, theretofore, to wit, on the twenty-second day of December, eighteen hundred and thirty-five, was seized and possessed of a certain close, situate' in the county aforesaid, in his demesne as of fee, which said close was. known as the East half, &c. And that defendant afterwards, to wit, on the day and year aforesaid, with force and arms, at the county aforesaid, broke and entered said close, and expelled and ejected, &c., and had since kept and detained possession, and had received the rents and profits, &c.
    The defendant plead not guilty, and suggested that next before the issual of the plaintiff’s writ, for, three years, he had been in the undisturbed and adverse possession of the premises, in the declaration mentioned, and had erected permanent and valuable improvements on the same; and prayed that the value of the same' might be assessed, and allowed, under the statute in such case made and provided.
    The plaintiff took issue on the first plea; and replied to the suggestion, and second plea, that the title of the plaintiff was derived from one who derived title from the United States; and that defendant ought not to be allowed for any improvement made on the land described.
    To this replication, there was a general demurrer.
    And on a day certain, the parties came, and the demurrer of the defendant to plaintiff’s replication, was heard and understood by the court, and sustained; and thereupon, came a jury, who, on their oaths, said they found for the plaintiff, the premises, described in the declaration, and that the defendant was guilty of the trespass, — and assessed the plaintiff’s damages at forty-five dollars. It was, therefore, considered "by the court, that the plaintiff have a writ to obtain possession of the premises, and that he recover of the defendant the damages, assessed, &c., together with his costs in that behalf expended.
    The bill of exceptions stated,- that, upon the trial of the cause, the plaintiff offered,'in evidence, the receipt of the receiver of the land office, at Cahawba, shewing, that for the lands in the declaration mentioned, in January, eighteen hundred and thirty-five, Richard' Norton had paid the purchase money required by law, for said lands,-" — and that certificate was given of that fact. Plaintiff further introduced a deed from Richard Norton to plaintiff, dated the fourteenth day of December, eighteen hundred and thirty-five. No objection was taken to the form of either instrument. The deed conveyed the lands to the plaintiff. Plaintiff then proved a demand by plaintiff, of defendant, for the lands, in December, eighteen hundred and thirty-five, before suit brought; and an admission by defendant, that he was in possession at that time, and would never give up until compelled by a jury of the country. Plaintiff also proved the value of the rent.
    Defendant then proved that he had been in possession of the lands for four or five years — had constantly been so, during all that time — had opened twelve or fifteen acres, and fenced the same; and that there was a fodder-house upon the lands, erected by defendant: That he had gathered crops each year, and that his plantation was contiguous to it.
    Upon this, the court charged, that the plaintiff having derived the title from Norton, who entered the land at the office, at Cahawba, if demand was made of defendant, and he admitted he was in possession, at the time of suit brought, and they jiroved the 1 and to be in Montgomery county, they ought to find for the plaintiff. .
    The court refused to charge the jury, that if they believed, from the testimony, the land claimed, was in possession of defendant, at the time the deed, under which plaintiff claimed, was executed, by Norton to the plaintiff, the deed was void, and the plaintiff not entitled to recover. To which defendant excepted.
    And at this present term, plaintiff in error came, and said there was error, in this, that at the time the lands sued for, were purchased by the vendor of the plaintiff the defendant was in possession of the same, and ever since had remained in possession; and whilst defendant was so in possession, plaintiff could not purchase, nor could the vendor convey a title that would enable plaintiff to recover the same, without the consent of defendant.

      Dargan, for plaintiff in error.

      Thorington, contra.

      E. D. Thorington, for defendant in error,
    submitted the following points of inquiry:—
    3. Could the suit be maintained in the name of the assignee of a register’s certificate?
    2. Was the certificate sufficient evidence to support the legal title set out in the declaration?
    3. Must the party conveying, have actual possession of the premises, to render the conveyance valid?
    And—
    4. Does the rule apply to a purchaser from the United States against a mere trespasser?
    He cited, Aik. Dig. 283, 94 ; 2 Porter, 437 ; Bulloch vs Wilson, 3 ib. 363; Goodlet vs Smithson, 5 Porter, 245; Barr vs Gratz, 4 Wheat. 221, 222; Hallet vs Eslava et al. 2 Stew. 115; Green vs Jeter et al. 8 Cr. 244, 246,247 ; Hilton’s lessee vs Brown, 1 Wash. C. C. Hep. 204; Waldens vs Heirs of Gratz, 1 Wheat. 292; Cox’s Digest, 555, New Jersey case. 2 Bibb, 412 ; 2 Littell, 390, Aldridge vs Kincaid; 5 Peters, 493 ; Walden vs Gratz’s heirs, 2 Wheat. 295; Kirk vs Smith, 9 ib. 241; Gateioood vs Head, 2 Lit. 61; Jackson vs Waters, 12 Johns. Rep. 365 ; Stoever vsWhitman, 6 Binn. 420; 9 Johns. R. 167, and note a; Brandt vs Ogden, 1 ib. 156.
   GOLDTHWAITE, J.

This was an action of trespass, instituted in the Circuit Court of Montgomery county, to recover the tract of land described in the declaration, under the statute to try titles ; and the plaintiff in the court below having obtained a judgment, the defendant now prosecutes this writ of error.

From the bill of exceptions, which was taken on the trial in the Circuit court, it appears that one Norton, in January, one thousand eight hundred and thirty-five, entered the land in controversy, at the proper land office, and received a certificate of final payment. On the fourteenth of December, of the same year, Norton conveyed the land to the plaintiff. The action was commenced in February, one thousand eight hundred and thirty-six, and the defendant admitted he had possession when the suit was instituted; On this evidence, the plaintiff rested his case.

The defendant produced no paper title, but pro'ved that,he had been in possession of the land, for four or five years, and had made valuable improvements on the land. The Circuit court charged the jury that the title thus shewn in evidence by the plaintiff, was sufficient to enable him to recover the land in this form of action, and refused to charge the jury that the deed from Norton, under which the plaintiff claimed, was void and inoperative, because of the possession of the land by the defendant at the time of its execution.

In the case of Goodlet vs. Smithson, decided at this term, this court recognized the principle, that a purchaser from the United States, had before patent an inchoate legal title which could be sold under an execution at law. The principle of this decision applies with equal force to the present case. The title thus acquired may be conveyed to the grantee of the purchaser, in the same manner as any other legal title, and the estate will be transferred by such conveyance.

But another question is presented by the record in this case, of some importance. It is insisted, that although the purchaser from the United Suites, might be entitled to institute a suit for the recovery of the land, yet inasmuch as the defendant was in possession at the time of the conveyance f!o the plaintiff, the deed to him, for this reason, was inoperative, and passed no estate.

Waiving an examination of the question, how far an adverse possession will render a deed inoperative from one out of possession, until a case shall be before us, presenting it directly, we will consider if the defendant in this action, has shewn himself entitled to insist on such a defence.

'There can be no, entry which will create a title adverse to the government ; and it is shewn that at the time the defendant entered the land it was a part of the unsold public lands. It is also necessary, to constitute an adverse possession, that it shall be under color of title. It is not essential, that the title be good : indeed no matter how defective, the result is still the same: no question arises in which its strength requires to be examined.—Smith vs Burtis; Jackson vs Waters.

In this case the defendant does not attempt to defend himself by virtue of any title or under color' of title, and the grant from the United States, uuder which the plaintiff claims, is recent. To hold that the defendant is authorised in .such a case, to defend against one claiming mediately or immediately from the government, would be subversive of well settled and established principles, —Jackson vs Bonnell et at: Small vs Procter: See also.

The judgment must be affirmed.

      5 Porter, 245.

      17 Viner, 176-1 Burr, 109.

      9 Johns. 174.

      12 Ib. 365,

      9 Johns. 162—2 Caines, 183

      15 Mass. 495

      2 Seargt. & Rawle, 565.


source: Caselaw Access Project

author: GOLDTHWAITE, J.

license: Public Domain

text:
    KENNEDY vs DEAR.
    J, A defendant in an action of slander, can not shew the truth of the words charged as slanderous, in mitigation of damages ; but any facts or circumstances, which will rebut or repel the presumption of malice, are properly admissible under the general issue.

      2. Malice is essential to be shewn, in an action of slander; and therefore, where a defendant had charged plaintiff with perjury, for having used the term “violent,” in an affidavit, describing an assault and battery, committed by defendant on plaintiff, the legal import of which term appears to have been misapprehended, — it may be shewn, in mitigation of damages, and to rebut the presumption of malice, that defendant uttered the slanderous words with reference alone to his understanding of the plaintiff’s use of the term, “violent.”
    3. A justice of the peace; who is a witness in a cause, may be asked whether he has had any particular case before him, but may not speak of the papers connected with the suit, unless they are produced. _

      4. The usual and ordinary mode of proving the official character of a justice of the peace, who is a witness in a cause, is, by his own oath, and this is the usual mode in all cases, except in suits against himself.
    Error to the Circuit court of Wilcox.
    Case, for words spoken. Bradley Dear complained of Jonathan Kennedy, that, whereas the said plaintiff was a good, true, honest, just and faithful citizen, and as such, had always behaved and conducted, and until the committing, &c., was always reputed, esteemed and accepted as a person of good name, fame and credit, and had never been guilty, or suspected to have been guilty of perjury or any other such crime. By means of which, before the committing of the grievance by defendant, as hereinafter mentioned, he had deservedly obtained the good opinion and credit of all his neighbors, &c. And whereas a certain cause had been depending before the committing, &c. in a Justice’s court, before one Abijah Miller, esquire, a justice of the peace, &c. sitting at the court-house, in a cause, wherein the State was plaintiff, and Jonathan Kennedy, defendant, and charged with an assualt and battery; which said cause had been then lately tried at the court-house, to wit, on the fifth day of August, eighteen hundred and thirty-four — and on the said trial, the said plaintiff had been and was examined, on oath,as a witness, by the said justice, and had given his evidence as such, for and on the part of the State, to wit, on said fifth of August, ' Yet, the said defendant, well knowing the premises, and envying, &c,, and contriving to injure plaintiff in his good name, fame and credit, and bring him into public scandal, infamy and disgrace amongst the neighbors; and to cause it to be suspected, that he was guilty of perjury, and to subject him to the pains and penalties of the laws, made, provided against, and inflicted on persons guilty thereof ; and to vex, harrass, oppress, impoverish and wholly ruin plaintiff: theretofore, to wit, on said fifth day of August, and on divers other days, before that time, falsely and maliciously, in a certain discourse, which defendant then and there had with plaintiff, in, of, and about the trial aforesaid, in the presence and hearing of- Benjamin Miller, and divers citizens, falsely and maliciously spoke and published, of and concerning plaintiff, these false, scandalous, malicious and defamatory words, that is to say, — “ You, (meaning plaintiff,) committed perjury” on the trial, as aforementioned, before the aforesaid justice : meaning, that plaintiff, in giving testimony, as a witness, on the trial before the justice, had perjured himself, and was guilty of wilful and corrupt perjury.
    And afterwards, on the same day, in another discourse, about the same trial, in the presence of divers .citizens, and in their hearing, spoke and published these other false, &c._ words, — “You swore alie, on the trial, before Abijah Miller — and I can prove it ?” meaning that plaintiff had perjured himself, as a witness, in giving testimony, in the cause .aforesaid., &c.,. and that defendant could prove it,
    And afterwards, on the same .and other days, in another discourse about the same trial, in the presence of diverse citizens, and in their hearing, spoke and published these other false, &c. words, — “ You .swore falsely in giving your evidence on the trial, and I can prove it i” meaning that plaintiff had perjured himself, as a witness, in giving testimony in the cause jaforesaid, &c.; and that defendant could prove it.— By means, whereof, &c.
    To this declaration there were pleas, the general ■issue, and the statute of limitations, — and a general .demurrer,
    • And at May term, eighteen hundred and thirty-five, the defandant’s demurrer to plaintiff’s declaration having been argued by counsel, and considered by the court, it seemed to the court proper, that the demurrer should be sustained. It was therefore, order- , ed by the court, that the demurrer should be sustained ; that the plaintiff have leave to amend his declaration ; and that the cause should be continued to the next term.
    And at the fall term of the same court, the defendant had leave to plead to plaintiff’s declaration, as. amended. Defendant then demurred generally, and the demurrer being argued, and considered by the court, it seemed to the court that the said demurrer should be sustained, and that the plaintiff should have leave to amend, upon the payment of costs, &c.
    And at the' Fall term of the same court, eighteen hundred and thirty-six, the defendant’s further demurrer to plaintiff’s amended declaration, being argued, and considered by the court, — it seemed to the court, that the demurrer should be overruled; and the defendant had leave to plead over, on paying the entire costs of the term : and thereupon came a jury, who, upon their oaths, said they found for the plaintiff, and assessed his damages at three hundred dollars. It was therefore, considered by the court, that the plaintiff recover, &c. his damages and costs — and that execution might issue, &c.
    The bill of exceptions stated, that on the trial of the case, the plaintiff proposed to prove by a witness, that he was an acting justice of the peace. To this mode of proving official character, defendant objected; but the court overruled the objection, and the question was asked and answered. Plaintiff then asked the witness, if he had ever had before him a case of The State vs Bradley Dear. — To this defendant objected ; but the court overruled the objection, and the witness answered, he had; and then proceeded to ' identify the papers produced as the affidavit, warrant, &c., taken and issued by him, &c. The affidavit was stated by the justice, to be the form taken from the “Alabama Justice,” in like cases.
    The defendant offered to prove, that when this affidavit was presented to the plaintiff, to be verified, he objected'to its terms, stating that the assault and battery was not, in fact, a violent one, as averred in the affidavit; but amere chucking.under the chin, or something to that amount: but, that on the justice informing him, it was in the form required in such cases, &c. he swore to it; and that it was, on reading the terms of said affidavit, and without information as to the explanation before the justice, that the defendant uttered any slander, which may have been spoken of the plaintiff.
    To the introduction of such parol proof, the plaintiff objected, and the court excluded it, on the ground, that it was a circumstance, going to shew, that plaintiff was guilty of perjury; though it was stated by defendant’s counsel, that the object in view was in mitigation of damages. To all which defendant excepted, &c.
    The plaintiff in error assigned—
    1. That the court'erred in the matter stated in the bill of exceptions.
    2. The court erred, in overruling the demurrer to the plaintiff’s declaration.

      Hopkins and Bedford, for plaintiff in error.

      Porter, contra.
   GOLDTHWAITE, J.

Bradley Dear instituted this action of slander in the Circuit court of Wilcox, and in his declaration, charged Jonathan Kennedy with having uttered of him, the words, “ You committed perjury,” with a colloquium, staling them to have been spoken in reference to a cause, wherein the State of Alabama was plaintiff, and the said Kennedy was defendant, on a charge of assault and battery ; which cause had been then lately tried, before one Miller, a justice of the peace. The defendant demurred to the declaration, and the demurrer being overruled by the court, he pleaded not guilty, and the statute of limitations, on which issue was joined, to the country, and a verdict returned, for the plaintiff.

On the trial of the case, the defendant tendered a bill of exceptions to the admission of certain evidence, on the part of the plaintiff, and the refusal to admit other evidence, on behalf of the defendant — which may all be stated as follows:—

1. The Circuit court permitted a witness to ¡Drove that he was an acting justice of the peace, without any evidence being produced, to shew his official character.

2. The same witness was permitted to state, that a certain case of The State vs Bradley Dear, had been before him.

3. The witness having proved an affidavit made by plaintiff, the defendant offered to prove, that when the same was presented to the plaintiff, to be verified, he objected to its terms, stating that the' assault and battery, was not, in fact, a violent one, as averred in the affidavit; but a mere chucking under the chin, or something like that: but that, on the justice informing him, that it was in the form required in such cases, he swore to it, — and that it was on reading the terms of said affidavit, and without information, as to the explanation before the justice, that the defendant uttered the slanderous words imputed to him.

This evidence the Circuit court excluded, for the reason that' the circumstances tended to shew, that the plaintiff was guilty of perjury ; although it was stated, by defendants counsel, to be offered, in mitigation of damages.

It is now assigned as error, that the Circuit court erred in overruling the demurrer to the declaration, and in the several matters excepted to on the trial,

It is contended, that the declaration shows a case,in which a justice of the peace, had no authority, and therefore, an oath administered by him, in the course of it, was extra-judicial, — and the defendant would be discharged from any liability for slanderous words-imputed to him, if they referred to an oath so admi--nistered.

If a defect in the jurisdiction of the justice of the peace was apparent on the record, this position would be properly assumed; but in our opinion, the case which is stated in the declaration, only refers to an examination Or prosecution, for, and on a charge of assault and battery, and not an extra-judicial trial, for that offence, before a court, without jurisdiction. This objection can not, therefore, avail, and there was no error in overruling the demurrer.

1. The first exception, as to the incompetency of the evidence offered, to establish the official character of the justice of the peace, can not prevail. This is the usual and ordinary mode of proof in all cases,when the act of an officer has to be proved, except as in suits against himself. Berryman vs Wise; Pother vs Luther; Bullock vs Wilson.

2. The next exception is, that the justice was permitted to state, that he had had before him the case of The State vs Bradley Dear. If we were not satisfied, from the context of the bill of exceptions, that the name of Dear is here substituted for that of Kennedy, we should decide; that any inquiry relating to such a suit, without shewing the relevancy of the inquiry, to the case before the court, would be irregular and erroneous; but from what immediately fol-lows the statement of this matter in the bill of exceptions, we are induced to believe, that the inquiry was made of a suit, against Kennedy; for, when the affidavit was introduced, and the witness -asked if Dear did not object to its terms, before he would verify it, the bill of exceptions evidently refers to the same proceedings ; and it would be absurd, to suppose that Dear was about to swear against himself. From this circumstance, we feel compelled to infer, that the one name has been substituted for the other, by a clerical mistake, either in transcribing or framing the bill of exceptions. Assuming this to be the case, there was no error in the justice being asked the question; but he would not be permitted to speak of the papers connected with the suit, unless they wei’e produced.

3. The only remaining exception, to be examined, is that which refers to the rejection of the evidence proposed to be given, of what Dear said, when the affidavit was presented to him, to be verified : and, it is not easy to perceive, on what principle this evidence could be refused. The legal effect of it, was evidently misconceived, by the Circuit court. — So far from this evidence having a tendency to induce the belief that Dear had sworn or was willing to swear to a falsehood, it proves that he was unwilling to use a word of doubtful import, the meaning of which might be misunderstood or misconstrued to the injury of another.

If the use of the word “violent,” in its legal acceptation, struck the imagination of Dear, as not properly applicable to the outrage committed on his person, we needliot be surprised, that it should have excited the indignation of Kennedy, when the affidavit was, for the first time shewed to him ; and if, as set forth in the bill of exceptions, it was on reading the affidavit, that the words were spoken of Dear, in relation to the use of the term “ violent,” it would go far to rebut the presumption of malice.

But, although Kennedy might be, in some measure excused, if the expression used by him, was made alone with reference to his understanding of the meaning of the word — yet, if, after cool reflection had intervened, he should have repeated the exceptionable words, under the hope and expectation, that he could find shelter or immunity from such a cause, the law will give no countenance to such an excuse.

Malice is essential to be shewn in actions of this description — and may be, and usually is, infered from the falsity of the words; but there is some excuse for the individual, who, mistaking the meaning of the word, rashly accuses his adversary of perjury, with reference to a peculiar meaning given by him, to the oath taken — when there is none for him, who ■ will endeavor to cloak his malignity, by taking refuge behind an inadvertent expression, or even a mistake of the fact sworn to.

In the case under consideration, all the circumstances attendant on the publication of the words spoken, were matters proper to be left to the consideration of the jury, as from the circumstances as well as from the words themselves, was the presumption of malice to be raised, or to be rebutted. Van Rensellaer vs Dale.

In our opinion, the point is not presented, how far it is competent for a defendant, on the plea of not guilty, to shew facts and circumstances, from which the truth of the charge, as made, might be inferred; but the principiéis recognised and admitted, that a defendant cannot shew the truth, in mitigation of damages— but any facts or circumstances, which will rebut or repel the presumption of malice, are properly admissible, under the general issue.—Grant vs Hover.

The Circuit court, therefore, erred, in excluding the evidence, covered by tins exception; and for this cause, the judgment rendered must be reversed, and the cause remanded.

       4 Term Rep. 366.

      3 Johns. Rep. 431.

      5 Porter, 338.

      2 Starkie on Evidence, 881; ib. 873.

      1 Johnson's Cases, 279 ; 2 Starkie on Evidence, 862, 863.

      6 Mum 14 ; 2 Starkie on Evidence, 877.


author: COLLIE.E, C. J.

text:
    PERRYMAN &c. vs BURGSTER.
    An infant plaintiff is not liable for costs, unless he waive his plea of infancy, or fail to sustain it, or it be not available in law, as where he is sued for tort — his prochien ami is. A guardian ad litem is never chargeable with costs.
    2.Proceedings in forcible entry and detainer, before a justice, and others of a similar character, when removed by certiora-ri, from the justice to the Circuit court, are to be tried upon transcript sent up, and not by a re-investigation of the matters of fact.
    3. Transcripts, in such cases, can not be amended in the Circuit court, upon motion, sustained by affidavits, showing the ne-lect of the justice to record fully, the matters occurring on the trial.
    4. Where a justice has omitted to perfect a record, the correct practice is to move for a rule on him, to make certain amendments shewn to be material, and if he fail, then to shew cause- — and if the cause shewn, be insufficient, a mandamus should be awarded.
    5. A paper, purporting to be a transcript, as a return to a ceriio-mri., should not be received, unless it be certified by the justice, and returned with the wiit.
    6- It is no available objection, on a case of forcible entry and da tamer, brought up from a justice by certiorari, that the process was issued by one justice, and the case tried by another. Their powers are co-extensive.
    Error to the Circuit court of Wilcox county.
    Proceedings in forcible entry and detainer, before a justice of the peace.
    The complaint in this case, was made to'Samuel Pitts, one of the justices of Wilcox county, and stated that complainant, Joseph Burgster, was possessed of' a certain house and lot, with the appurtenances, in Daletown, in-said county,' to wit, lot number one, in block number sixteen, in the plan of said town — formerly in the possession of one Mrs Marsh — for a term of years, then and to come, unexpired: and, being so possessed, one Bryan Marsh, junior, and one Stephen Marsh, on the third of July, eighteen hundred and thirty-four, with force and arms, 'and strong hand, unlawfully entered, and him, said complainant, did expel and put out, and had since kept out: wherefore he prayed process, &c.
    The process was returned to J. Vincent, another justice of the same county, and on the trial of the case, defendants plead infancy, when on proof of the absence of their father and natural guardian, from the State, Alexander Perryman was appointed their guardian ad litem.

    Defendants then plead not guilty, and offered as evidence, the record of a case, tried in the Circuit court, wherein Bryan Marsh was plaintiff, and Albert G. Perry, defendant — which was rejected, on the ground, that Bryan Marsh and Albert G. Perry were not parties in the cause then to be tried, and that the record was informal. Defendant also proposed to prove by Joseph S. Ryan, that the title to the premises was in Bryan Marsh — which evidence was rejected, on the ground, that the statute declared, that the estate,‘or merits of the title, should in no wise, be inquired into, on a complaint of forcible entry and detainer: and thereupon came a jury of good and lawful men, who, having heard the evidence and argument, said they found the defendants guilty. Whereupon, it was considered by the court, that said Joseph Burgs ter be restored to and put in possession of the messuage and appurtenances, and that the guardian pay the costs of the inquisition, &c.
    From this judgment, defendant, Perryman, appealed to the Circuit court, &c., and obtained his writ of certiorari, &c.
    And at the September term, eighteen hundred and thirty-four, the plaintiff in error in the Circuit court, moved for an alias certiorari to the justice, requiring him to amend the record ; and assigned for error—
    1. That the -justice erred, in appointing Alexander Perryman guardian, ad litem, for Bryan Marsh and Stephen Marsh.
    2. The justice erred in rendering judgment for costs, against Alexander Perryman.
    3. The justice erred, in excluding the evidence of J. S. Ryan.
    And at the Spring term of the Circuit court of said county, eighteen hundred and thirty-five, plaintiff moved for a plumes'certiorari, and to amend the return of the justice, by certain affidavits filed, and for a trial de novo, which motions were severally overruled : and thereupon, the record being inspected and fully understood by the court, it seemed to the court, that there was no error in the record, — therefore it was considered by the court, that the judgment of the justice be affirmed; and that said Joseph Burgster do recover of said Alexander Perryman, guardian, &c. his costs; therein expended; and that a writ of proceden-do should is$ue to the justice. To all of which plaintiff excepted, &c.
    There were three affidavits, to wit:
    Joseph S. Ryan swore that he was called as a witness for defendants, on the trial before the justice, and offered to prove an original possession of the premises in Bryant Marsh, senior, the father of defendants, so that the possession of Burgster was not a rightful one, at the time of the offence complained of. Affi-ant offered to prove nothing concerning the titles to the premises, &c.
    The affidavit of Elihu Lockwood stated, that he acted as counsel for defendants,, on the trial before the justice; and that defendants offered to prove by Joseph S. Ryan, a chain of possession to the premises, for a number of years previous to the suit; and that six or eight months previous to the suit, Bryant Marsh, senior, under whom defendants claimed the right of possession, was in actual possession, and that he had never relinquished the same; and that during the six or eight months previous to the suit, neither the plaintiff, or the person under whom he claimed, had had either lawful or peaceable possession, — -all of which was refused by the court; and that no attempt was made, to prove any thing concerning the legal title, &c.
    The affidavit of Chauncey Powers stated, that he was present at the trial, before the justice, and that a motion was made by defendants to quash the summons, and that Ryan was offered to prove a possesso-ry right to the premises, in the defendants, through their father, &c.
    The bill of exceptions stated, that when the cause was called, the plaintiff in error suggested to the court, that there was no return to the certiorari, and thereupon moved for an alias certiorari, to perfect the record : That the counsel for defendant in error produced what purported to be a transcript, signed J. Vincent, J. P. [seal.] and dated eighth May, eighteen hundred and thirty-five, which they stated was among the papers of the cause. It was not. shewn when or by whom it was filed,- — it was in no manner attached to the certiorari, and there was nothing to identify the transcript produced, with the certiorari, other than the contents of the papers. Plaintiff in error urged, that these matters exhibited no sufficient return to the certiorari, and moved for a pluries.— The court determined the return sufficient, and overruled the motion.
    The counsel of plaintiff in error, then submitted the affidavits of J. S. Ryan, E. Lockwood, and C. Powers, as a part of the bill of exceptions, together with the petition of the original certiorari; and thereupon moved the court to amend the record, according to the facts disclosed, to wit, that there had been an offer made, by the defendants, before the justice, to prove a rightful possession by them, of the premises, which motion was overruled. Plaintiff in error then moved the court, on the affidavits, for a rule on the justice, to shew cause, why the record should not be amended, according to the facts of the case, especially as to the proof of possession offered and rejected; which motion was overruled by the court.
    The plaintiff in error, then moved for a trial de no-vo, in the case, which motion was also overruled. To all of which plaintiff excepted, &c.
    The plaintiff assigned for error, in this court—
    1. That the Circuit court erred, in refusing to reverse the judgment of the justice, for the reasons assigned in that court.
    2. The court erred, as stated in the bill of exceptions.
    3. The court erred in refusing to award a pluries certiorari, as prayed.
    4. The court erred in receiving the papers found in the file, as a part of the record, as they were not a return to the certiorari.

      Ellis and Peck, for the plaintiffs in error.
    Porter, contra.
   COLLIE.E, C. J.

The record informs us, that the defendant in error made complaint before Samuel Pitts, a justice of the peace, of Wilcox county, against the plaintiffs, of a forcible entry and detainer, made by the n, in and of a house and lot, situate in Daletown, in that county: that process was issued, as the statute directs in such cases; and that Alexander Perryman, being appointed their guardian, ad litem, a trial was had before John Vincent, a justice of the peace of Wilcox county, on the plea of not guilty, when a verdict was found and judgment rendered, in favor of the defendant in error, for the recovery of possession, and also against the guardian, ad litem, for costs.

The plaintiffs then prayed for, and obtained a certi-orari, for the removal of a perfect transcript of the record and proceedings of the case, to the Circuit court, for revision. At the return term of the certio-rari, upon a suggestion, that the transcript was imperfect, which accompanied it, an alias certiorari was asked for, and awarded. At the succeeding term of the court, the plaintiffs moved the court for a pluries certiorari, and to amend the record, by certain affidavits filed, and for a rule against the justice, requiring him to amend his return. All of which was overruled. The plaintiffs then demanded a trial de novo, which was also denied, and they were forced to join in error.

The plaintiffs then suggested to the court, that there was no return to the alias certiorari.

The defendant’s counsel then produced a paper, purporting to he a transcript, signed J. Vincent, J. P. [seal.] — and dated the eighth May, eighteen hundred and thirty-five, which they stated, was among the papers of the cause. It was not shewn when, or by whom it was filed. — —It was in no manner, attached to the certiorari; and there was nothing to identify the transcript produced, with the certiorari, other than the contents of the papers: and, notwithstanding the ob~ jection of the plaintiffs, that this was no return, the court determined it to be sufficient. To all which . decisions, the plaintiffs excepted. The questions of law arising upon this bill of exceptions, as well as those raised in the Circuit court, are here assigned for error.

Several of the errors assigned in the Circuit court are not sustained by the record, and it will, therefore, be unnecessary to notice them.

It has been so often decided, that it may now be considered the settled lav/, that cases of the character of the one at bar, when removed by certiorari, from a justice of the peace, to the Circuit court, are to be tried upon the transcript of the proceedings sent up, and not by a re-investigation of the matters of fact before the jury. There is, therefore, no error in the refusal of the court, to accord to the plaintiffs, that description of trial.—McDonald vs Gayle; Dunham vs Carter and Carroll.

In regard to the motion in the Circuit court, to amend the transcript upon affidavits, shewing the ne-glectof the justice, to record fully, the matters occurring on the trial, which the statute requires to be recorded, we think it was properly denied. The transcript should be sent up by the justice, correctly, and though it be inaccurate, it cau not thus be amended.

The correct practice, when the justice has omitted to perfect the record, it seems to us, is to move the Circuit court for a rule against him, to make certain amendments to his minutes, which are shewn to the Court, by affidavit, or otherwise, to be material omissions; or if he fail or refuse to make such amendments, then shew cause therefor, at the return of the rule.— If the cause shewn be deemed sufficient, the rule should be discharged,—if insufficient, a peremptory mandamus should be awarded. We find no. express authority for this practice, 'but ><think it results from the analogy of the law. If a judge refuses to seal a bill of exceptions; he may be compelled, by mandamus to do so,

In the case before us, the matters required to be entered upon his minutes, by the justice, to wit — “ the admission'of evidence, objected to, and the rejection of evidence offered, the reason of such admission or rejection,” &c., are usually, in the higher courts, made part of the record, by bill of exceptions: here, the justice is required, without the agency of the parties, or their counsel, to record them himself. The analogy being so just, we think similar means should be allowed, to enforce a performance of duty, in either case — the more especially to prevent a failure of justice.

In New York, it is a frequent practice, where cases are brought up, by certiorari, from a justice of the peace, if his return is- objectionable, to award a rule upon the justice, to amend his return — Rudd vs Baker; Wilson vs Fenner; Simpson vs Carter.

The Circuit court erred, in receiving the paper, purporting to be a transcript, as a return to the alias certiorari. The mandate of the writ required that the transcript to be sent up, should be certified by the justice, and returned together with the writ. It was not attached to the writ, nor was it certified; but was merely found in the papers of the case : nor was it even shewn, that it was intended as a return. There was, then, no authority for receiving it as such.

It is further objected, that the judgment rendered by the justice of the peace, as well as that of the Circuit court, against the guardian ad litem, for costs, is erroneous.

Ail infant plaintiff is not liable for costs, — his pro-ehien ami, who voluntarily represents him, is chargeable; but an infant defendant, where he waives his plea of infancy, or fails to sustain it, or if it be not available in law, always pays costs.

Where an infant is sued for a tort, his minority will not avail him; yet it is the duty of the court, in such case, to assign him a guardian, to conduct his defence; and the power to make such an appointment, belongs to all courts, however limited their jurisdiction. Some friend of the infant defendant is most usually appointed to that office — yet, if there be no friend designated, or none esteemed of sufficient discretion, it is competent to appoint some ministerial officer of the court.

In Muir’s Executors vs Stuart’s Representatives, it was determined to be the correct practice, by analogy to that prevailing in the English Chancery, to appoint the clerk and master in equity, a guardian, ad litem, to defend a suit brought there against infant defendants. The court also remarked, that the clerk and master can not refuse this trust, but is bound to perform the duty it imposes, which can not result in injury to himself. This declaration implies that he is not liable for costs — for if he could be charged, he might be injured.

The time ground of distinction between the proclvien ami of an infant plaintiff, and the guardian of an infant defendant, we take to be this: the one voluntarily comes into court, and makes himself a party of record, while the other, without his own agency^ is made such, by the court. This distinction does not-always hold good, in point of fact, for the guardian, ad litem, sometimes solicits the appointment; yet the court, in some instances, exerts a coercive authority, and as in these, he is not chargeable with costs, for the sake of uniformity, he is held not to be liable in any case. The judgment for costs, against an improper person, does not authorise an entire reversal of the judgment, but a mere correction by reversing and rendering, if there be no other error upon the record; and as this was the only one pointed out in the Circuit court, that court could not have reversed and remanded the case; but should merely have corrected it, in the manner we have indicated.

In the refusal of the Circuit court, to award a plu-ries certiorari, as moved by the plaintiffs, there is no error. It was a motion which addressed itself to the discretion of the court, and the propriety of granting it, must have depended upon circumstances, of which a revising court could not well be placed in possession.

It was no available objection, that the complaint was made to, and the process issued by one justice, while the case was tried before another. The powers of each were co-extensive. But even if this objection had been allowable, it was waived, by the failure to make it at the trial.

This view disposes of the case, and the result is, that the judgment must be reversed, and the cause remanded.

      Alabama Reports, 98.

      2 Stew. Rep. 496.

      For the office of a mandamus, and cases in which it is a proper remedy, vide Willcock on Municipal.Corporations, 354 — 14 Law Lib.

      7 Johns. Rep. 548.

       3 ib. 439,

      5 Ib. 330.

      Reeves’s Domestic Rel. 267.

      8 Johns. Rep. 418.

      1 Murphey’s Rep. 440.

      4 Stewart & Porter, 125.


author: COLLIER, C. J.

text:
    BLAKENEY vs BLAKENEY.
    3.At common law an action could not be maintained by an executor or administrator, to recover damages for an injury done to either the person or property of the testator or intestate.
    2. But the statute of 4 Edw. 3, c. 7, authorises an action by an executor, for a trespass done to the goods and chattels of the testator, and the remedy was further extended by statute 25 Edw. 3, c. 5, and to administrators, by the statute 31 Edw. 3, c. 11.
    3. And by the equity of the statute, an executor or administra^ tor might have a quare impedit for a disturbance in the lifetime of the testator or intestate, and the personal representative of a termor might maintain ejectment, where testator had a lease for years, or from year to year, whether the ouster was before or after his death.
    4. To construe a statute according to its equity, is to give an effect to it, according to the intention of the law-makers, as in_ dicated by its terms and purposes, and therefore—
    5. The statute of 1826, (Aik. Dig. 1st ed. 260,) does not au-thorise the commencement of an action, de novo, by the personal representative, for an injury done in the life-time of the testator or intestate.
    Error to the Circuit court of Wilcox county.
    Trespass to try titles, and for damages by an administrator. At the Spring term of the Circuit court of Wilcox county, eighteen hundred and thirty-six, the plaintiff in error, administratrix, See., declared against the defendant in error, for that, said defendant, on tbe first day of January, eighteen hundred and thirty-four, and in the life-time of the intestate, with force and -arms, &c., broke and entered a certain close of the intestate, situate, lying and being in the county aforesaid, to wit: the east half of the south east quarter of section nineteen, of township eleven, of range nine, in the district of Cahawba — and then and there cut down, prostrated and destroyed the trees then and there growing, and with horses, mules, oxen and ploughs, ploughed up and subverted the earth and soil of the said close; and then and there broke down and destroyed the fences of the intestate, of and belonging to the close — and then and there kept possession of said close, for a long space of time, to wit, for the space of one year, without the leave or license of the intestate, and against his will; and hindered and prevented the intestate from having the use, benefit and enjoyment thereof, in so large and ample a manner as he might, and otherwise would have done, &c.
    And whereas, also, defendant, afterwards, on the same day, with force and arms, broke and entered a certain other close of the intestate, to wit, the East half, &c., and ejected,' expelled, put out and amoved said intestate, from his occupation and possession thereof — and kept and continued him so expelled and amoved, for a long space of time, to wit, from the day aforesaid, to the first day of January, eighteen hundred and thirty-five, and during that time, took and received to the use of him, said defendant, all the issues and profits of said close, being of the yearly value of two hundred dollars ; whereby the intestate lost the issues and profits of the close, and was deprived of the use and means of cultivating the same ; and other wrongs, &c., to the damage of intestate^ in his life-time, and of the administratrix, &c., — and therefore she sues, and brings her letters of administration, &c.

      To both the above counts, the defendant filed a general demurrer, and plaintiff joined in demurrer.
    And at the Fall term of the same court, eighteen hundred and thirty-six, the defendant’s demurrer to plaintiff’s declaration, was argued and considered by the court, and it seemed to the court, that the demurrer should be sustained. It was therefore considered by the court, that the defendant should go thence, without day, and recover of the plaintiff, his costs expended, for which he might have execution, &c.
    From this judgment there was a writ of error, and the plaintiff in error assigned, that the court erred in sustaining the demurrer, — for which cause she prayed that the judgment might be reversed.

      Peck, for plaintiff in error said
    I insist that this action was well brought by the plaintiff, as administra-trix, by virtue of the act of eighteen hundred and twenty-six. ,
    This is a remedial statute, and is to be construed liberally. The court will look to the equity of the statute, for the purpose of sustaining the action.
    Among the many rules laid down, in order to form a right judgment, whether a case be within the equity of a statute, is, to suppose the law-maker present, and to ask him the question, did you intend to comprehend this case 1 Then, give yourself such answer, as you imagine he, being an upright and reasonable man, would give. If this be, that he did mean to comprehend it, you may safely hold the case to be within the equity of the statute- — Bacon’s Abr. — title Statute, 1, 6.
    Now, if this question could be fairly propounded to the makers of this statute, can there be a doubt but their unanimous answer would be — we did intend to comprehend this case ?
    The words of the 13 Eliz. 3, are “ circumspecte agatis de negotiis tam gentibus Episcopum Noroicensemf yet this statute, although only the Bishop of Norwich be named, has been always extended by an equitable construction, to other bishops. — (See also, the 13 Eliz. declaring all leases by ecclesiastical bodies, for a longer-term than twenty-one years, void: yet by an equitable construction of this statute, leases, though for a longer term, if by a Bishop, are-not void during the Bishop’s continuance in his See. — 1 Bl. Com. 87, 88.)
    So, also, the remedy given by the 9th Ed. 3, against executors, has been always extended, by an equitable construction, to administrators.
    By the 22cl section of the Judiciary act of September twenty-fourth, seventeen hundred and eighty-nine, appeals, in equity cases, are limited to a period of five years after the decree. In the case of Thomas vs. Harver’s heirs, 10 Wheaton — the court deeided, that a bill of review was comprehended within the equity of the provision, and would not be entertained after a lapse of five years.
    Our act of 1826, makes no distinctions between actions of trespass to real and personal property — for injuries to either, revive to the representatives. “ All actions oí trespass quare clausum fregit, and actions of trespass to recover for injuries to personal property, may, if the plaintiff or plaintiffs die, be revived by his, her or their representatives.”
    Here is clearly no distinction made between injuries to real and personal property.
    Now suppose a violent injury to be done to a valu-ble horse, or a favorite servant, by which they become perfectly useless, and the owner die, before he have time to bring his action, — may not the executor or administrator have a remedy for such injury, by virtue of the equity of this statute 1 If they can not, the profession ought never again to boast, that law is the perfection of reason. If, in such a case, trespass may not be brought, no remedy qan be had, and the wrong doer escapes without punishment.

      Is the language of this statute too narrow, or the intention of the legislature too plain, to permit such an action! It seeips to me, not. If, then, an action may be sustained, for an injury to personal property, in such a case, will not the same expression also give the action of trespass, guare clausum fregit?

    The statute says all actions, &c. may, if the plaintiff or plaintiffs die, be revived. Now, is it too strained a construction of the language here employed, to say the legislature intended to embrace injuries or causes of action, which existed at the death of the party, as well as those for which an action had been actually commenced?
    The use of the words “plaintiff or plaintiffs,” could not have been employed, with'the intent to admit the one and exclude the other: they are mere words of identification, to show, that the remedy should not die with the party injured\ but with the party who had done the injury; that is, that an action of trespass could not be brought or revived, against an executor or administrator.
    By the statute of 4 Edw. 3, the word trespass, only is used- — yet, by an equitable construction of that statute, it has been extended to every description of injury to personal property, by which it has been rendered less beneficial to the executor, whatever the form of the action may be,- — so that an executor, by virtue of that statute, may have trover, case, for an escape on mesne, or final process; an action of ejectment, for an ouster, in the life of the testator, and a guare impedit. I Chit, on PI. ma. 58 ; 1 Wins, on Ex. 511 to 514; Cpoke’s Eliz. 207; Toller on Ex. 433.
    These are all actions of tort, but none of them are embraced within the ordinary meaning of the word “ trespass;” yet the executor is entitled to these actions — -and, the reason given in the two last named cases, is, because the damages belong to the executor
    Our statute and the 4th Edw. 3d, are substantially the saíne, with this difference, that the statute of 4 Edw. 3, used the word “trespass” only, which was construed not to extend to trespass on real estate — that is, free-hold estates: and, is it not fair to presume, that this construction of that statute, induced our legislature to embrace by name, the action of trespass quare clausum fregit.

    So, it is said the statute of 4 Edw. 3, does not extend to injuries done to the person, or to the freehold of the testator, — therefore, an executor or administrator shall not have actions of assault and battery, false imprisonment, slander, deceit, for diverting a water course, obstructing lights, or other actions of the like kind,— for such actions still die with the testator. — Wms. on Ex. vol. 1, p. 513. And, in accordance with this construction, it is said, in the next paragraph, that an executor shall not have an action of trespass quare clausum fregit, founded on a wrong done to the freehold. But, if the wrong was to an estate less Úiwl freehold, would not this authority give an action for it 1 If not, why is the word “freehold,” used ?
    The same author, in the next page, settles this doubt: — he says, “ where the testator is but tenant for years, or by extent, so that the very estate in the land, was to come and is to come to the executor, (together with quicquid plantatur solo,) the executor or administrator, it should seem, ought to have, together with the estate in the soil, the action to punish the trespasser on the soil.
    If, in such case, the executor or administrator, has an action for such a wrong, it must be an action of trespass quare clausum fregit — for he could bring no other.
    The same author then proceeds to say — “ It is apparent, from authorities which have already been cited, that the true test, with respect to the right of action surviving to the executor or administrator, is not to be found,by referring to the consideration, whether the action is founded in tort. But the rule, (says he) now established, is, that an action will not lie, for the personal representative, except in cases where some damage done to the personal estate can be stated on the record. Accordingly, it was held, in the case of Cham-berlin vs Williamson, that an executor can not have an action, for a breach of promise of marriage to the deceased, where no special damage to the personal estate can be stated on the record. — 2 Maulé & Sel. 208; 1 Wms. on Ex. 516. But if special damage can be shewn, then the action can be sustained.
    In this case, the gravamen is, breaking the close, expelling the deceased, and taking the rents and profits. The word “close,” in an action of this kind, has a technical meaning, signifying the interest in the soil; and it is a sufficient description of the plaintiff’s interest, however temporary that interest may be. — 1 Chit, on PI. 174, ma. If it be a term for years, or even a less estate, it is sufficiently described, by calling it a close. Under the pleadings in this case, the court will not stop to enquire whether the estate is a freehold, or less than a freehold. An inj ury to the personal estate is, therefore, sufficiently set out on the record. — The loss of the issues and profits was a clear injury to the personalty.
    Again; the executor or administrator succeeds to all the rights of the testator or intestate, especially those which concern the personal estate, as technically distinguished from the real estate, and must necessarily be entitled to the proper actions to make those rights available.
    The latter view of this case has been pressed, for the purpose of shewing, that a construction of our statute, that will sustain this action, is not as wide a a departure from its letter, as the construction of 4th Edw. 3d — giving the actions of trover, case, ejectment, qaare impedii, &c. — none of which are embraced, except by the equity of that statute.

      Hopkins and Parsons, contra.
   COLLIER, C. J.

The plaintiff in error, as ad-ministratrix of Alfred Blakeney, deceased, brought an action of trespass quare clausum fregit, against the defendant, in the Circuit Court of Wilcox. On her writ, she indorsed, that the action was brought as well to recover damages, as to try titles.

The declaration contains two counts: the first charges, in addition to the breach, entry, &c. of the close of the plaintiff’s intestate, in his hfe-time, that the defendant kept possession thereof, for the sjiace of twelve months, and hindered and prevented the intestate, for that space of time, from occupying the same. The second count only varies from the first, in alleging the actuai expulsion of the intestate, from the close broken and entered.

The declaration concludes, to the damage of the intestate, in his life-time, and to the plaintiff his admi-nistratrix.

To each count the defendant demurred, and, his demurrer being sustained, the plaintiff prosecutes a writ of error to this court..

Several points have been made, at the argument, which we deem it unnecessary to consider — and will confine our inquiries to an examination of the question, whether the plaintiff is entitled to maintain the the action she has brought.

It was a principle of the common law, that no action could be maintained, by an executor or administrator, to recover damages for an injury, done either to the person or property of his testator or intestate —the action died with the person — and this principle applied as well where the deceased was the aggressor, as where he was the party injured. This rule of personalis actio moritur cum persona, received considerable alteration by the statute of 4 Edw. 3 c. 7, entitled de bonis asportaiis, in vita testaioris, the prcam-ble lo which recites, that theretofore, executors have not had actions for a trespass done to their testators, as of the goods and chattels of the said testators, carried away in their life, so that such trespasses have remained unpunished, and enacts, “ that the executor ■in such cases, shall have an action against the trespassers, and recover their damages in like manner as they whose executors they be, should have had, if they were living.” The remedy given by this act is farther extended to executors of executors, by statute 25 Edw. 3, c. 5, and to administrators by the statute 31 Edw. 3, c. 11.

The statute of 4 Edw. 3, being remedial in its character, has ■ always been liberally expounded in advancement of the object of the legislature; and though the word trespasses only is employed, it has been held to embrace other cases within the intention of the statute.—Emerson vs Emerson; Berwick vs Andrews. So, by an equitable construction of the statute, it has been determined that the executor or administrator is not restricted in the form of action to be adopted, but may prosecute any, by which an injury to the personal estate of the testator, in his life-time, (which lessens its value,) may be redressed. —Williams vs Carey.

And by the equity of the statute, an executor or .administrator may have a guare impedit, for a disturbance in the time of his testator or intestate. So, the personal representative of a termor may maintain ejectment, where the testator had a lease for years, or from year to year, whether the ouster was before or after the death. —Doe vs Porter.

. I have considered thus at length, the exposion of 4 Edw. 3, not because of its direct influence upon the case at bar, but to ascertain whether, by analogy, a construction may be placed upon our statute, which authorises the plaintiff to prosecute her suit. The act of our legislature, relied upon by the plaintiff, is in these words, — “All actions of trespass quare clausum fregit, and actions of trespass to recover damages for injuries to personal property, may, if the plaintiff or plaintiffs die, be revived by his, her or their representatives, in the same manner as actions on contracts.”

This act, though it changes the common law, is' clearly remedial, and should receive a liberal interpretation — that is, should be extended beyond the literal import of its terms — if this be necessary to the effectuation of the end it contemplates, and to prevent a failure of the remedy it proposes. To determine the extent of its operation, we must ascertain its obJe<£ . . . , , . .

By its terms, it gives to executors and administrators the right to revive certain actions of trespass, and is entitled, “An act to provide for reviving actions of trespass.”

The object, then, to be effected, is the revival of actions brought by a testator or intestate, in the name of a personal representative, and not the commencement of an action de novo. Reasons may have infiur enced the legislature in giving a remedy, in the one case, which it was unwilling to extend," in the other. In the former, the deceased had himself elected to seek redress, and should his suit abate by his death, his estate would be subjected to costs. In the latter, he had brought no action, and may have intended to waive the wrong.

These considerations, it is possible, may have influenced the legislature, in thus limiting the remedy.— Be this as it may, the construction contended for at the bar, cannot be given to it, unless we go, not only ultra the strict letter, but contra the letter also — which is inhibited by every just principle of construction.

The statute of 4 Edw. 3, never extended to execu-' tors of executors or administrators, (though these perhaps were embraced by an enlarged equity) hence, the enactment of the statutes of 25 and 31 Ed. 3. And our act, passed professedly to authorise the revival of actions, can not be held to give an authority to maintain an action originally; this would be, not to promote the intention of the legislature, but to go quite beyond it. The statute 'of the 4 Edw. 3, was enacted to afford a remedy in favor of an executor, by an original action for a wrong done to the personal estate of the testator in his life-time, and it has been rightfully determined, that it authorised any action, by which the injury to the personal estate could be repaired, on the ground, that they came within the equity of the statute.

To construe a statute according to its equity, is nothing more than to give effect to it, according to the intention of the law-makers, as indicated by its terms and purposes. Hence, it may either be extended or restrained, by an equitable construction; and it is held, that a case out of the mischief intended to be remedied by a statute, shall be construed to be out of the purview, though it be within the words of the statute.

The intention of the act being so clearly manifested in its body, we scarcely deem it necessary to call in aid its title, which speaks with clearness its end. The title of a statute, we are aware, is an unsafe criterion, by which to determine its meaning; yet, in cases where the intent is not plain, it may slightly assist in removing' ambiguities.

To conclude — the case before us, is one for which the legislature have failed to provide a remedy — perhaps designedly — -but, whether this be so or not, we have no power to supply the omission ; and, instead of extending the statute to embrace grievances not within its purview, we think it safer to say, in regard to such cases, with Mr Justice Heath, “ The legislature is always at handand if it be thought wise to give the remedy, its powers are ample. We have considered this case, as it was considered at the argument, an action to recover damages, only: and, were it taken, as indicated by the indorsement on the writ, to be an action to try titles, the result would not be different. The personal representative of a termor, for an ouster in his own time, may have an action; but such is not the present.

Our conclusion is, the plaintiff is not entitled to an action, — and the judgment is consequently affirmed.

       Sir W. Jones's Rep. 174.

       2 Ld. Rayra. 974.

       Lateh, 168.

      4 Mod. R.403; 2 Bac. Ab. 445.

      1 Wms. Ex. 513.

      3 Term Rep. 13.

      Aik. Dig. 1st ed. 360.

      Aik. Dig. p. 17, no. 16.

      Dwarris on Stat. 724—9th vol. Law Lib.


author: ORMOND, J.

text:
    MURFS vs HARDING et al.
    1. Appeals to the Circuit court from the judgment of a justice of the peace, are to be tried de novo.

    2. Open accounts do not necessarily carry interest, and if they 'do, it is in the power of the plaintiff to release the same; and thus bring his claim below the sum of twenty dollars; and so prore the demand by his own oath.
    Error to the Circuit court of Perry county.
    Appeal from a justice of the peace. In this case, the parties having appeared before the justice, on the investigation of the case, the defendants not being able to resist successfully the entire claim of the ¡plaintiffs, judgment was rendered against them for twenty dollars, and the costs. Defendants, being dissatisfied with the judgment, prayed an appeal to the next Circuit court, which was granted.
    And, at the Fall term, eighteen hundred and thirty-five of the Circuit court of Perry county, defendants moved the court to quash the summons issued in the case, by the justice, on the ground that the plaintiffs were described as a firm, and because their Christian and surnames were not fully and severally set out; which motion, being considered by the court, was overruled, and it was considered by the court that the said summons was good and legal: whereupon, the plaintiffs submitted the cause for trial, alleging that the sum claimed, did not exceed twenty dollars — and, having failed to produce any evidence to sustain or prove their cause of action, it was considered by the court, that the said plaintiffs recover nothing by their said suit ,* and that defendants go hence, without day, and recover of said plaintiffs, their costs by them in that behalf expended, for which execution might issue, &c. To which plaintiffs excepted, &c.
    The bill of exceptions stated, that on the trial of the cause the plaintiffs offered to prove their account of twenty dollars, by their own oath — being the amount for which the justice below had rendered judgment in favor of the plaintiffs, on an open account. The pourt refused to permit the plaintiffs to testify, on the ground, that the interest which had accumulated on the judgment below', had increased the amount to more than twenty dollars, notwithstanding plaintiffs offered on the trial to release all interest, if any had accrued .on said judgment. To which plaintiffs excepted, & c.
    And the said plaintiffs now assigned for error, the decision of the Circuit court excepted to, as stated in the bill of exceptions.

      J. B. Clark, for plaintiffs in error.

      Erwin, contra.
   ORMOND, J.

This was an appeal from the judgment of a justice of the peace. The sum claimed was due by open account, and judgment was rendered for the plaintiffs, by the justice, for twenty dollars.

On the trial, in the Circuit Court, the plaintiffs offered to establish the truth of the account, by their own oath, which .was refused by the court, on the ground that the interest, which had accrued on the judgment below, had increased the amount to more than twenty dollars — notwithstanding the plaintiffs offered to release the interest.

There was judgment for the defendants, and writ of error to this court.

The Circuit court erred. By the appeal, the cause was to be tried de novo. The account did not necessarily cany interest; and if it did, it was in the power of the plaintiffs not to claim it-

The judgment must be reversed and the cause remanded.


text:
    SAMPSON AND LINDSAY vs GAZZAM.
    1. In all cases where a custom or usage has been engrafted on our system of jurisprudence, so as to become a part of the unwritten law, there must have been a time, when it began to be, at which time, as the courts could not take judicial notice of it, the custom must have been proved, not as law, but as evidence of the intention of parties. Therefore—
    2. The custom of merchants and others in Alabama, is recogni-sed as a part of the law, when it is offered to prove what was the intention of parties to a contract; although, semble, such custom may be afterwards ripened into law.
    3. Where a custom or usage is proved to exist, in relation to a particular trade or pursuit, if it be general, all persons engaged therein, are presumed to contract, in reference to such usage.
    4. Evidence of usage or custom is received for the purpose of ascertaining the sense and understanding of parties by then-contracts, which are made with reference to such usage or custom. The custom becomes part of the contract, and may be considered the law of the contract, and tests on the same principles as the doctrine of the lex loci.

    5. If, by the usage or practice of one class of the community, words are used in a different sense from their acceptation raong others, not engaged in the same pursuit, their language ought not to be interpreted by a rule not within their contemplation, at the time of making the contract: Therefore,
    0. Parol proof may be received, to shew that the words “ dan-» gers of the river,” in a bill of lading, are, by the usage and custom of merchants and others, understood to include other casualties than those arising from the element of water.
    Error to the Circuit court of Mobile.
    Action on the case against defendant, as a common carrier. At the Spring term of the said court, eighteen hundred and thirty-two, plaintiffs declared against defendant, for that, whereas said defendant, on a certain day, theretofore, was the owner of a steam boat, generally known and called as the Mobile, then and at that time, running and navigating the Alabama river, for the transportation of passengers, goods, wares and merchandize, cotton, and other articles of freight, on the said boat, and receiving reasonable hire or compensation therefor, did, on the day and year mentioned, accept and receive from the plaintiffs, at. Claiborne, to, wit, in the county aforesaid, divers goods and chattels, the property of said plaintiffs, to wit, twenty-seven bales of cotton, of great value, &c.— yvhich said cotton, at the time of the delivery thereof, to defendants, by plaintiffs, was in good order and well conditioned, and which defendant, then and there at the day mentioned, and in the county aforesaid undertook and faithfully promised to deliver in the like good order arid condition, to Messrs St. John & Leavens, or their assigns, at the port of Mobile, at the rate of one dollar per bale, freight, for thekransportation and delivery of the same, at the said port of Mobile. Yet said defendant, not regarding his duty, &c., never did deliyer the said twenty-seven bales of cotton, at Mobile, aforesaid — but so to do, had entirely failed, in so much that the said twenty-seven bales of cotton, had been entirely lost to plaintiffs, &c.
    And whereas, also, to wit, on another certain day mentioned, in the said county, said defendant was engaged and employed as a common carrier, and as such, in the habit of carrying cotton from Claiborne •to Mobile, to wit, in the county aforesaid, by means of a certain other steam-boat, called the Mobile, then and there belonging to defendant, and in the habit of receiving compensation therefor, said plaintiffs did, on the day mentioned, deposit on board said steam-boat, Mobile, certain other twenty-seven bales of cotton, in good order and well conditioned, for the purpose of having the same conveyed to the port of Mobile, in said like good order and condition, and then and there promised to pay the defendant for the transportation and delivery of said cotton, at Mobile, so much as he -reasonably deserved to. have. And defendant, then and there, to wit, at the county aforesaid, and on the day and in the year aforesaid, undertook, and faithfully promised said plaintiffs to deliver said twenty-seven bales of cotton to Messrs St. John & Leavens, or their assigns, at Mobile. Yet said defendant, not regarding his promise, and undertaking, See., never did deliver the said cotton or any part thereof, to said St. John & Leavens, or to any other person — but plaintiffs averred, that the same had been utterly and entirely lost, to their damage, Sec.

    To this declaration defendant plead the general issue, and at the Spring term of eighteen hundred and thirty-four, in the same court, came a jury of good and 'lawful men, who being sworn, &c. said they found a verdict in favor of the defendant. It was therefore, considered, by the court, that plaintiffs take -nothing in their writ, and that defendant should go thence, without day, and recover his costs, Sec., for which execution might issue, Sec.

      Plaintiffs thereupon filed their bill of exceptions, which stated that the bill of lading was in the following words and figures:
    “ Shipped, in good order and well conditioned, by Sampson and Lindsay, on board of the steam-boat called the Mobile, whereof Young was master, then lying at Claiborne, and bound for Mobile, twenty-seven bales of cotton, marked and numbered as on the margin, and to be delivered in the like good order and condition, at Mobile, (the dangers of the river only excepted,) unto St. John & Leavens, or their assigns, he or they paying freight for the said cotton, at one dollar, — primage and average accustomed. In witness whereof, the master or purser of the said vessel had affirmed to three bills of lading of that tenor and date, one of which being accomplished, the others to stand void,” &c.
    It was admitted that defendant was the owner of the boat, at the time the cotton was put on board, and that the officer who signed the bill was clerk on board, and that the boat, togethor with the twenty-seven bales of cotton, with the rest of the cargo, were entirely destroyed by fire, the night after the cotton was put on board, and before the boat reached Mobile; but in what manner the fire originated did not appear.
    The plaintiffs proved the probable weight and value of the cotton, and closed the evidence on their part. The defendant proved that the fire originated in the hold of the boat, — That the hold was entirely filled with cotton, at Montgomery, and the hatches then closed two days before the fire occurred. — That the hatched were closed at Montgomery, and had not been opened for two days previous to “the fire, and that no light or fire had been introduced into the hold. That the fire was seen bursting up perpendicularly through the deck, from the hold, and that the flame then had the size and appearance of the flame of a can-die ; that it burst out thus, aborTt four feet behind the ash-pans and furnaces; and that the space between the place where the fire burst out, and the ash-pans and furnaces, -was sheathed with copper.
    The witnesses further swore, that the fire could not, in their opinion, have been communicated from the ash-pans or furnaces. . They also swore that the cotton placed in the hold, at Montgomery, was taken in during a rain, and that the officers and crew did every thing in their power, for the purpose of arresting the progress of the fire, and saving the boat and cargo; and that the captain, officers and crew were sober, attentive and careful.
    The defendant then offered numerous witnesses, for the purpose of proving what, according to the general sense, practice, and understanding of merchants, planters and others, in the State óf Alabama, was the meaning of the words inserted in the bill of lading, viz: “ dangers of the river only excepted,” when such bill of lading was given for goods, shipped on board of a steam boat, to which the plaintiffs objected, on the ground, that the meaning of these words was ascertained by law, to be the dangers incident to the element of water, as storms, tempests, lightning, &c. and that an accidental fire did not fall within the meaning of the dangers of the river.
    The objection was overruled by the court, and the defendant was permitted to prove whether an aciden-tal fire, by which the boat and cargo were destroyed, and which was not attributed to any want of diligence, care, skill or integrity, on the part of those entrusted with the control and management of the boat, and which they could not have prevented, did, according to the general sense, practice and understanding of the people of the State of Alabama, including merchants, planters, boat-owners and others, fall within the meaning of the exception of the bill of lading, to wit, “the dangers of the river.”

      The plaintiffs requested the court to charge the jury, that steam-boat owners were, in legal contemplation, common cai-riers, and were liable as such, for the delivery of all articles shipped on board of their boats, unless they were disabled from making such delivery, by the act of God, a public enemy, or some other cause naturally arising out of the element of water, and that the accidental destruction of the boat, by fire, was not within the meaning of the exception, to-wi't, “ the dangers of the river.” The latter part of which instruction, the court .refused to give; but charged the jury, that although steam-boat owners , were common carriers, and as such, would only be excused-from the discharge of their trust, by the act of God, or a public enemy, that yet they could enter into a special contract, varying their common law liability : and if they believed from the testimony, that they had entered into such a contract, in which they had protected themselves against “ the dangers of the river”- — and if they believed from the testimony, that according to the sense, practice and understanding of the merchants, planters and others, in the State of Alabama, by these words was meant an accidental fire, not attributable in any manner to the want of care, intelligence, skill, or honesty, of those who had the control of the boat, they would find a verdict for the defendant — if this was such an accidental fire as before mentioned. But that the want of proper diligence, care, skill, &c. would not excuse the carrier, even though they should find that his special contract protected him as above mentioned.
    From the judgment of the Court below, there was a writ of error to this court, and the case came on for hearing at the present term. -
    And the plaintiff said that in the record and pro ceedings and judgment below, the following errors had intervened : — ■
    1. The court erred inmot charging the jury in the manner requested by plaintiff, as stated in the bill of exceptions.
    2. The court erred, in overruling the objections offered by the plaintiffs to the introduction of the defendant’s evidence, to shew what, according to the custom, usage and understanding of merchants, planters and others, was the meaning of the words in the bill of lading, “ the dangers of the river.”
    3. The court erred, in refusing to instruct the jury, that steam-boat owners were to be considered as common carriers, and, as such, liable for the delivery of all goods shipped on board their boats, unless they were disabled from making such delivery, by the act of God, a public enemy, or some accident otherwise naturally arising out of the element of water; and that the accidental destruction of the boat by fire, was not within the meaning of the exception, to wit, the dangers of the river. And that the judgment and proceedings were in other respects erroneous.

      Ellis and Peck, for the plaintiffs in error.

      Hopkins, contra
   ORMOND, J.

This is an action brought by the plaintiffs against the defendant, as a common carrier. The declaration is against him as a carrier at common law. The questions which are made in the cause, arise out of a bill of exceptions, which was taken by the plaintiffs, at the trial — the material parts of which are the following.

The bill of lading, signed by the plaintiffs and used as evidence, was in these words. — “ Shipped in good order and well conditioned, (by the plaintiffs,) on board the steam-boat, Mobile, whereof Young is Master, now lying at Claibqrne, and bound for Mobile, (certain bales of cotton,) marked, &c., to be delivered in the like good order and condition, at Mobile, (the dangers of the river only excepted,) unto (the consignees,) or assigns, paying, &c. In witness whereof, & c.

The defendant proved that the fire originated in the hold of the boat; that the hold was entirely filled with cotton at Montgomery, and the hatches then closed, two days before the fire occurred, and that no lights or fire had been introduced into the hold: that the fire was first seen, bursting up perpendicularly thi-ough the deck, from the hold, and the flame then had the size and appearance of the flame of a candle ; that it burst out thus, about four feet behind the ash-pans and furnaces : and that'the space between the place where the fire burst out, and the ash-pans and furnaces, was sheathed with copper. The defendant further proved, that the cotton placed in the hold at Montgomery, was taken in during a rain ; and that the officers and crew did every thing in their power to arrest the fire, and save the boat and cargo.

The defendant then offered witnesses, to prove the meaning of the words inserted in the bill of lading, viz : “ dangers of the river only excepted,” when such bill of lading was given for goods shipped on board of a steam-boat. This was objected to by the plaintiffs, but allowed by the court.

The plaintiffs then proved, that an accidental fire, by which the boat and cargo were destroyed, and which was not attributed to any want of diligence, care, skill or integrity, on the part of those entrusted with the management of the Boat, was, according to the general sense, practice and understanding of the people of the State of Alabama, including merchants, planters, boat-owners and others, within the meaning of the exception in the bill of lading, to wit, “ dangers of the river.”

The plaintiffs requested the court to charge the ju : ry, that steam-boat owners, were, in legal contemplation, common earners, and were liable, as such, for the delivery of all articles shipped on board their boats, unless they were disabled from making such delivery, by the act of God, a public enemy or some other cause, naturally arising out of the element of water; and that the accidental destruction of the boat by fire, was not within the meaning of the exception, “ dangers of the river,” — the latter part of which instructions the court refused to give; but charged the jury, that although steam-boat owners were common carriers, and as such, could only be excused from the discharge of their trust, by the act of God or the public enemy — that yet, they could enter into a special contract, varying their common law liability : And if they believed from the testimony, that they had entered into such a contract, in which they had protected themselves against the dangers of the river — and if they believed from the testimony, that according to the sense, practice and understanding of merchants, planters and others in the State of Alabama, by these words, was meant an accidental fire, not attributable, in any manner to the want of care, intelligence, skill and honesty, in those who had the control of the boat, they would find a verdict for the defendant, if this was such an accidental fire first before mentioned. But that the want of proper care, skill and judgment, would not excuse the carrier, even though they should find that his special contract protected him, as above mentioned. To this charge of the court there was an exception. A verdict was found for the plaintiffs. The above charge of the court is now assigned for error.

This is a case of the highest importance. In a country where property to such a vast amount, is annually transported to and from the sea-board, by the agency of common carriers, the precise character of the stipulations entered into by the parties, and the rights and obligations thereby created, should be clearly ascertained and plainly defined.

There is not, and indeed could not be any contra-versy, about the obligation which the common lav/ imposes on a common carrier. If that rule is to be applied to the defendant he is clearly liable for the value of the cotton; although there cannot be any doubt, that the fire by which the cotton was consumed, was not caused by the negligence or want of skill of the captain or crew of the boat, on which the cotton was shipped — but was, in all probability, a case of spontaneous combustion.

The precise question here presented, for the first time in this State, is, whether a carrier can be allowed to explain the meaning of the words, “dangers of the river,” in a bill of lading, at the place where the contract is made. The natural import of the phrase, would seem to refer to those accidents which are peculiar to the element of water: and the attempt, in this case, is to shew, by parol proof, that the phrase in question, is of much larger import — and was understood by the parties, to exempt the carrier, from all losses, not attributable to his negligence, want of skill or honesty.

As courts of justice sit to expound and enforce the contracts, which parties litigant before them, have made, it is the plain dictate of natural justice, that proof, shewing what the contract is, should be allowed to be made, if the evidence can be heard by the court, consistently with those rules which have been established for the ascertainment of truth.

It is insisted, that the words, “ dangers of the river,” in a bill of lading, have a plain, ascertained meaning, and that, to permit it to be explained by parol proof, would, in effect, be to permit a written instrument to be varied by parol. If it be liable to this objection, it will be fatal to its admission, — for, however great .the injury might be, in this particular case, it would be better to submit to it, than to introduce into our system of jurisprudence, a principle so fraught with mischief.

It is true, that in general, when an ambiguity exists on the face of a written instrument, it is the province of the judge to explain it. But it frequently happens that the usage of trade, and the practice among’merchants, is absolutely necessary to be known, to a proper understanding of their contracts. At first these usages and customs are proved, as evidence of the intention of the parties, and are at length, silently incorporated into the body of the law, and recognised by the courts.

It is a matter of no monent whether this is considered an exception to the general rule, or whether it is esteemed a resort to the proper authority for an authoritative exposition of the language used by the ■parties. Words are but the vehicles of thought, and if, by the usage and practice of one class of the community, words are used in a sense, different from their acceptation among others, not engaged in the same pursuit, it would be the height of injustice, to interpret their language by a rule, not within their contemplation at the time of making the contract, and thereby subject one of the parties to the penalty of a contract he had never entered into.

That to permit proof to be made in similar cases, has long been considered as the settled law, both in England and the United States, an examination of a .few leading cases will shew. In Abbot on Shipping, 254, ■a case is cited, which happened in the reign of Charles the 1st. To an action of covenant, on a charter party, which contained an exception of the perils of the sea, the defendant pleaded that the ship was taken, by hostile persons, armed in a warlike manner — and thereupon, the question, whether such a capture was within the exception, was brought before the court'by a demurrer, in the most strict technical form. The court, however, took the opinion of several merchants, by certificate in writing, and afterwards by examination in open court, upon the meaning of the words of this exception, as established by usage among them, and decided in conformity to such opinion.

The case of Gooden vs. Little is expressly in point with the one at bar. The suit was against a common carrier, for injury to goods entrusted to his care. The declaration contained a special count on the bill of lading, which contained an exception similar to the one under consideration, and a count against him as a carrier at common law. On error to the Supreme Court of Pennsylvania, Chief Justice Tilghman and Judge Duncan determined, that the words in the bill of lading (“ unavoidable dangers of the river”) might be explained by proof of a usage, to ascertain the construction of the contract.

The same principle has been determined by the Supreme Court of the United States, in the case of Renner vs. The Bank of Columbia. The case arose out of a custom of the banks in the District of Columbia, to make demand and give notice on the fourth day of grace.

As there is no difference in law between these conditions of a contract which the law implies, and those which are expressly stipulated, it might have been in that case, as in this, insisted, that proof of any usage or custom, different from that implied by law, was inadmissible. It was so insisted; but the court held, that on proof of the usage, the action could be maintained — saying, “ that evidence of usage or custom is received for the purpose of ascertaining the sense and understanding of parties, by their contracts, which are made with reference to such usage ór custom; for the custom then becomes a part of the contract, and may not improperly be considered as the law of the contract, and it rests on the same principle as the doctrine of the lex loci.” See also Jones vs. Fales.

In the case of Cole vs. The Com. Ins. Com. parol evidence was admitted to shew that by the general usage and custom of merchants and under-writers in New-York, the word “ roots,” in a policy of insurance, was confined to such roots as were perishable in their nature, and that sarsaparilla was not a root perishable in its nature, or included in that term in the memorandum of the policy. It is conceived that the principle of this decision is fully in point.

In Great Britain the principle has been settled in a multitude of cases. The case Cutler vs. Powell, goes at least as far as any of the American cases. The action was brought by an administrator for work and "labor done by his intestate. The captain of a ship had given a note to the deceased, by which he promised to pay him a sum of money, provided he proceeded on a voyage, and continued to do duty as second mate, to the port of destination. He died before reaching it, and the action was brought to recover for the services actually rendered. The legal effect of this contract was plain. The right to recover any thing by its express terms, depended on the performance of services to the place of destination : yet the Court of King’s Bench held that it was allowable to show the usage and custom of merchants to pay a rateable proportion of the wages, notwithstanding the legal effect of the contract, unexplained by such or custom.

It was attempted in argument to evade the force of the decision made in 9 Wheaton, and others here cited, because it appeared in these cases, that the party sought to be charged, knew of the existence of the usage. But it is plain that the decision did not turn on that fact. There is no difference between those presumptions which the law makes of the existence of a particular fact, from the proof of the existence of other facts — and proof of the fact itself. In other words, when the law raises the presumption of the existence of a fact, the presumption is itself proof of the fact. Where a custom or usage is proved to exist, in relation to a particular trade or pursuit, if it be general, all persons engaged therein, are presumed to contract in reference to such usage. Thus, in the case of Mills vs. The Bank of the United States, it is determined that “ where a note is made, for the purpose of being negotiated, at a Bank, whose custom is to demand payment and give notice on the fourth day of grace, that such custom forms a part of the law of the contract, and it is not necessary that a personal knowledge of the usage should be brought home to the indorser.” But in this case, the objection, if it were valid, could not be sustained, as the jury have found that the contract was made in reference to the usage.

It was also objected, that the evidence established a custom general throughout the State, and if so, it was part of the law of the land, and should have been pronounced by the cotfrt, and not left to the jury.— But the court below, (and this court,) were bound to take notice that no such usage or custom has obtained here a sufficient length of time, to have the force of law. In all cases where a custom or usage has been engrafted on our system of jurisprudence, so as to become a part of the unwritten law, there must have been a time when it began to be, at which time, as the court could not take judicial notice of it, it must have been proved not as law, but as evidencing the intention of the parties. What length of time, or what se-lies of judicial determinations is necessary to ripen a custom or usage into law, it is not necessary now to determine. It is sufficient that such was not the fact when this case was tried.

It would be a waste of time to multiply cases to establish the effect that usage and custom have upon contracts, made in reference to such usage or custom. The cases which have been cited, and many others, might be adduced, conclusively to establish the proposition maintained in this opinion.

It is not intended to invade the general principle, that a written instrument cannot be contradicted or varied by parol proof. A charter-party, bill of lading, or other mercantile instrument, when clear and unambiguous in its terms, and not made in reference to any usage or custom, is not any more than any other instrument of evidence, to be impugned by parol proof.

There was no error in the charge given by the court below, or in the refusal to the charge as moved by the plaintiffs in error, and the judgment must be affirmed.

GOLDTHWAITE, J. not sitting.

       8 Scargt. & Rawle, 551.

       9 Wheaton, 585.

       4 Mass. 252—9 ib. 155—3 Conn. R. 13—Peters’ C. C. Rep. 225—1 Gallison 443—3 Day’s Rep. 346.

      7 Johns. Rep. 385.

      6 Term Rep. 320.

       See also, Douglass’ Rep. 511, and 6 East, 202.

      11 Wheat. 431.

       See also 1 Caine’s 43, and Douglass, 518.