# Thompson v. Musser

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THOMPSON PLF. in Err. verʃus MUSSER: Two Actions
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I. On the firʃt, or larger, record, it appeared, that a Capias in an action of Debt in the Detinet, iſſued at the ſuit of John Muʃʃer againſt John Thompʃon, for 200,000 weight of tobacco ; and the declaration ſet forth a penal bill, dared in the penalty oƒ 200,000 weight of tobacco, of the ſame inſpection to John Muʃʃer, of his aſſigns, as ſoon as it could be collected of thoſe who are indebted to the ſaid John Muʃʃer, and the Obligor ; but the ſaid John Thompʃon agrees, that, in caſe it cannot be collected, or obtained, he will be anſwerable for the fame.” ––After Oyer of the bill, the defendant pleaded payment, the Plaintiff replied nonʃobvit, and thereupon iſſue was joined.
The cauſe was tried at Lancaʃter, on the 7th of December, 1786, when the Plaintiff below gave in evidence the penal bill ſtated in the declaration, upon which an indorſement was made and ſubſcribed on the 25th of May, 1785, that “ it was agreed by the parties, that the within tobacco ſhould be ſettled at the current price at Frederickʃburgh, on the 1ft of May 1784 ; at which time the within bond is conſidered due, and is to carry intereſt from the date.” There was, likewiſe, a receipt on the back of the bill, ſigned by Muʃʃer's attorney in fact, on the 5th of July, 1785, acknowledging that he “ received the within bill in full.”
On behalf of the Defendant below, two indentures were given in evidence, from which, it appeared, that the Plaintiff and Defendant had entered into a copartnerſhip, for carrying on an inland trade during a limited period ; and on the denture laſt made between them, a memorandum was endoſed, dared the 3d of January, 1784, ſetting forth the receipt of the two penal bills, on which the preſent actions were brought, and declaring that the fame, when paid, were to go in diſcharge of what was due from Thompʃon to Muʃʃer. Several letters were read from the latter to the former, in which it was confeffed, “ that Muʃʃer had no other claim, but upon thefe bonds, againſt Thompʃon, and that every ​
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payment which had been made fince they were given, was on their account. The payment of a note for Ł.46 was then proved, and an agreement, which had been entered into by Muʃʃer, that “ on the payment of Ł450 fpecie, and the remainder that may appear due in warrants on the Treafure of the State of Virginia, which are received there in taxes at par, or equal to gold and filver, allowing Muʃʃer at the rate of 12½ per cent. on the whole amount of the bill.” To prove the payment of Virginia warrants, according to the terms of the foregoing agreement, a receipt was produced from Muʃʃer's Attorney, dated the 5th of July, 1786, to this effect: “ Received from John Thompʃon, Ł.16668. 11. 6⅛ Virginia currency in warrants on the Treafury of Virginia, which is fettled in fpecie, at Ł1484.4.4. Virginia currency ; being in full payment of his bond to John Muʃʃer, dated the 3d of January, 1784, for 100,000 weight of net crop tobacco, of the infpection of Frederickʃburgh, or Falmouth, in Virginia. ” And, in order to fhew that the warrants thus paid, were receivable in taxes, at par, or equal to gold and filver, the Counfel for the Defendant below, offered to read an act of the Legiflature of Virginia, (which contained a recital of a preceding act) on that fubject, from a pamphlet, ftitched in blue paper, with the following title page :––” Acts paffed at a General “ Affembly of the Commonwealth of Virginia, begun and held at “ the public buildings in the city of Richmond, on Monday the “ 3d day of May, in the year of our Lord 1784.—Richmond : Printed “ by John Dunlao, and James Hares, Printers to the Commonwealth.” “ But the reading this act being objected to on the ground, that it was not legally authenticated, the Court over-ruled the evidence ; and a Bill oƒ Exceptions to their opinion was rendered and allowed.
The Jury gave a verdict for Muʃʃer, faying, that “ They find “ 114,236 weight of net crop tobacco, of the infpection of Frederickʃburgh, “ or Falmouth, on Rappahannock river, to be due to “ the Plaintiff from the defendant, value Ł2000, with fixpence “ damages and fixpence cofts.” Whereupon judgment was entered generally.
II. On the ʃecond, or fmaller, record, it appeared, that an action of debt in the detinet, for 200,000 weight of net crop tobacco, of the infpection of Richmond, or Peterʃburg, in Virginia, was brought on another penal bill of the fame date, by which “ John Thompʃon binds himfelf in the penalty of 200,000 weight of tobacco, to pay to John Muʃʃer, 100,000 weight of tobacco, of the laft mentioned infpection, at or before the 1ft of May next enfuing the date of the bill.” The pleadings were the fame in this, as in the preceding cafe ; but the declaration being erroneoufly for tobacco of the infpection of “ Frederickʃburgh, or Falmouth, in Virginia, on Rappahannock river,” the Plaintiff's counfel, after the Jury ere fworn, moved to amend the declaration, agreeably to the tenor and ​
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purport of the writ, by ftriking out thofe words, and inferting, “ Richmond, or Peterʃburgh ; ” which the Court allowed, without the confent of the Defendant, and directed the fame Jury to be again immediately fworn for the trial of the caufe. This being done, and the Jury gone from the bar, the attornies of both parties figned an agreement, that, “ as it was then very late, the Prothonotary of the Court might receive the verdict, and that, if neceffary, they would afterwards mould it into form.”
The verdict then finds, “ 17, 853 weight of net crop tobacco, of the infpection of Richmond, or Peterʃburgh, in Virginia, to be due to the Plaintiff from the defendant, on the bill aforefaid, and the true value thereof to be Ł446.6.6. Pennʃylvania currency, with fixpence damages, and fixpence cofts:” Whereupon judgment was alfo entered generally.
Upon thefe records the general errors were affigned, and in nullo eʃt erratum pleaded in both caufes. They were argued together, firft at Lancaʃter, and, afterwards, in two different terms, at Philadelphia, by Bradƒord, Lewis, and Wilʃon, for the Plaintiff in Error , and by Chambers, Hartley, Yeates, J.B. M‘Kean, Sergeant, and Ingerʃoll for the defendant.
The fpecific errors alledged againft the firʃt record, were four:
1ft. That the declaration is for the penalty in a penal bill, but it omits to ftate, that John Thompʃon did not pay the fmaller quantity of 100,000 weight of tobacco, or a certain fum of money in lieu thereof, on the day fixed for the payment; fo that no caufe of action is fhewn to have accrued to the Plaintiff below for the penalty.
2d. That this being an action of debt in the detinet, the verdict is erroneous, becaufe it finds 114,286 weight of tobacco to be due to the plaintiff from the Defendant, and the true value thereof to be Ł,2000, which they find of debt,&c. becaufe the findings being of fo much tobacco due to the plainitff, is not an exprefs determination of the iffue, which is ʃolvit ; and becaufe the finding id not of all that was in iffue, fince the declaration is for 200,000 weight of tobacco, but the verdict is only for 114,286, and nothing is faid of the reft.
3d. That the judgment is erroneous, becaufe, enfuing the nature of the verdict, it is for the value of the tobacco in money, and not for the tobacco itfelf, or, if that cannot be had, for the value thereof in money.
4th. That the Court below were in an error, in over-rulling the evidence of the printed copy of the act of Affembly of Virginia, which purported to have been printed by the law printers of that Commonwealth, refpecting the nature and value of Treafury warrants, or certificates.
The ʃecond and third of thefe errors, were alfo alledged and applied againft the ʃmaller record, with an additional exception, to wit,––That after the Jury had once been fworn, the Court, without the confent of the Defendant below, difcharged them, ​
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permitted the Plaintiff to amend his declaration, fwore the Jury again, and neither gave the Defendant an imparlance, nor ordered the plaintiff to pay the cofts occafioned by his faulty declaration.
The caufes being held under advifement for a confiderable time, in hopes that a compromife would take place between the parties, the judgesnow delivered their opinions feparately and at large.
M‘KEAN, Chieƒ Juʃtice : ––The arguments on the records before the Court, have been ably and learnedly enforced. To thefe, and to the authorities produced on both fides, I fhall briefly refer, while I confider in their order, the objections that have been made in favour of the Plaintiff in Error.
I. In fupport of the firʃt objection, a variety of precedents have been fhewn of declarations upon penal bills from 1Mod. Ent. 180. 281. Brown's Mod. Infrands, &c and the following books were cited : Doug. 658. 8 Co.133. 4 Bac. Abr. 13. 7 Co. 10. a. 4 Bac.Abr. 16. 363. 5 Bac.Abr.321. 1 Cro. E. 548. 2 Cro 183. 500. Cro. C. 515. Hob. 82. 232. 12 Mod. 81. 1 Bulʃtr. 163. Salk 662. 2L.Raym. 814. Carth. 322. Doctrin. Placit. 329. Co. Litt. 303.
But the Counfel for the Defendant in Error have an anfwered thefe cafes, by urging that oyer of the penal bill was prayed and granted ; that the Defendant below pleaded in chief to the declaration, payment, and joined iffue ; and that the verdict was for the Plaintiff below. They contended, that the Plaintiff was only bound to prove the gift of the action ; that it was not incumbent on him to prove that the fmaller quantity of 100,000 weight of tobacco was not paid ; that under the act for defalcation (1 State Laws 48.) the Jury are to find the fum really due; and that the defect, if it was one, is cured by pleading over in chief, and, alfo, by the verdict. In corroboration of thefe pofitions, the city. Doug. 658. 8 Co. 133. Vaugh. 93. 4. 5. 4Bac. Abr. 19. 16.Hob. 199. 1 Lill. Pract. Reg. 418. Cro.C. 209. 5 Com Dig. 57. 58. 60. 1 Mod. 169. 1 Salk. 37. 38. 133. 8 Mod. 356. 1 Lev. 190. 12 Mod. 44. Cro. I. 668. Tri. per pais. 289. 290. 306. 307. 368. Cro. Car. 515. Cro. E. 68. 12 Mod. 459. 414. Carth. Rep. 80. 94. 2Will. 380. Cowp. 407. 1Stra. 233. 2 Stra. 925. 1006. 1011. 1 Will. 255. 1Salk. 9. Bull.N.P. 147. 148. 3 Black. 410. Barr. on Stat. 193. 2 Black. 406. 1 Vent. 108. 114. 122. 156. 1 Com. Dig. 60. 2 Vent. 153. Keelw. 187. b. 7 Rep. 10. a. 9 Vin. Abr. 599. pl. 1. 10 Vin. Abr. 3. pl. 1. 16 & 17 Car. 2. c. 8.
We are clearly of opinion, that this detect in the declaration, with refpect to the averment, cannot now be taken advantage of as an error. It might indeed have been fatal on demurrer ; but, at this period of the caufe, it is cured by the plea in bar, by the verdict, and by the ftatutes of Jeoʃʃails. The defendant below pleaded payment, which admits the declaration to be good. 10 Vin. Abr. 3 pl. 12. The penal bill became a part of the record by the oyer ; and if the Jury had not been fatisfied, that the fmaller quantity was ​
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not paid, they would never have given a verdict for 114,286 weight of tobacco. This was the very thing litigated and determined ; and it was the province of the Jury, under the act of defalcation, to afcertain the balance, which muft have appeared from the evidence. The verdict, therefore, alfo aids the omiffion of the averment. See 3 Black. Com. 394. Carth. 389. Jenk. Cent. 21. ca. 39. Ibid. 288. ca. 24. Several of the cafes cited on both fides do not apply ; but all the late authorities (many of which are in point) fupport our judgment on this occafion. Thofe cafes which bear a contrary afpect, occurred before the laft of the ftatutes of Jeoʃʃails, and previous to the more liberal decifions of modern Judges. 2 Burr. 756. The general rule, however, is now well eftablifhed, that if a Plaintiff ftates his title in his declaration in a defective manner, it will be cured by a verdict ; but not fo, if the title is totally defective in itfelf. Cro. E. 778.
2. The ʃecond objection is to the verdict ; and to prove the invalidity of that, the Counfel for the Plaintiff in Error, have cited Cro. J. 681. Yelv. 71. 2 Roll's Abr. 693. tit. Verdict pl. 5 Vaugh. 75. 4. Com. Dig. 145. 1 Inʃt. 227. Cro. Jac. 31. Cro. E. 133. 2 Sta. 1089. 2 L. Raym. 1581. 3 Lev 55.
To this the Defendant's Counfel have replied, that ftrict form in a verdict is not now required ; that it needs only to be underftood what the intention of the Jury was, agreeably to which the verdict may afterwards be moulded into form ; that the conftant practice in all the Courts in this State, as well before as fince the Revolution, has been to enter the verdicts on the iffue of non ʃolvit in the manner that has been ufed in the prefent cafe ; that the intention of the Jury is plain; and that the mode of entering their verdict is the act of the Clerk.–– Hob. 54. Co. Litt. 227. a. Salk. 328. pl. 2. 2Lill. Abr. 798. 4Bac. Abr. 58. 59. 99. 5 Bac. Abr. 297. 298. 314. 2Burr. 700. Cro. E. 664.
The Court, concurring in thefe reafons, cannot allow this exception.
3. That the judgment is for money, and not for the tobacco itfelf, or, it that cannot be had, then for the value thereof, makes the third objection ; in fupport of which the following books are cited: Yelv. 71. 8 Vin. Abr. 41. pl. 15. 17. 18.
But it is contended on the other fide, and fuch is the opinion of the Court, that if the verdict is good, the judgment muft likewife be fo ; for being entered generally, when it is drawn at large, it may be put into form ; and the merits having been tried, juftice muft be obtained without being entangled in technical niceties.–– Cro. J. 502. 6 Mod. 270. 1 Wils. 1. 2. Stra. 931. 1013. 1 Sid. 376. 5 Mod. 227. 1 Vent. 119. 2 Wils. 380. Cowp. 407.
4. The laʃt error affigned in this record, refpects the refufal of the Court of Common Pleas to admit the Defendant below to read in evidence, a copy of an act of Affembly of the State of Virginia, printed by the Law Printers there, and ftitched up, with a few other acts, in a blue paper cover. ​
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To maintain this objection, it has been argued, that in Great-Britain a public act of Parliament is proved by the printed ftatute book ; that a general hiftory is a proof of a general tranfaction, though not of a particular one ; that this is a general act , an promulgated in the ufual mode of promulgating the laws of Virginia ; that by the fourth article of the late Confederation, the Courts are obliged to take notice of the acts and proceedings of other States, as much as if they had occurred here ; and that the ordinances of France the laws of the Daniʃh iflands, proclamations in our fifter States, the ftatutes of England, Ireland and Scotlad, heralds' books, and regifters' , have frequently been read in evidence in this Court, becauʃe oƒ their public notoriety. 12 Mod. 86. 215. 216. 403. 12Vin. Abr. 119. 1 Atk 47 2 Eq. Abr. 406. 409. Cowp. 407. Gilb. L. E. 18.
In oppofition to thefe arguments, it was contended that the laws of Virginia ought to be proved as other facts in foreign countries ; that in Great-Britain private ftatutes muft be proved, either by fworn copies, or authenticated under the Great Seat ; that every man is, indeed, obliged to know the laws of his own country, for they are prefumed to be in every man's breaft, and the ftatute book contains hints of them ; but the laws of Virginia are unknown in Pennʃylvania, and are not in any wife obligatory upon us ; that the reafon why private ftatues must be proved before they can be received in evidence, applies ftrongly to ƒoreign acts of Affembly, for no man better verified than if it were in writing only ; that this act of Affembly might have been forged, or repealed, and yet, it would be impracticable on a fudden, pending a trial, to prove it ; and that there is no precedent of a determination of any Court, that fuch a copy is good evidence ; for, indeed, it militates againft the general rule of evidence, “ that the beft evidence the nature of the cafe will admit, ought to be produced.” and a fowrn copy, compared with the votes might have been had, or fome other regular authentication. Gilb. L. E. 4. 5. 13. 16. 17. 12 Mod. 403. 12 Vin. Abr. 129. pl. 59. Ibid. 109, 120. 1 Salk. 121. Cowp. 174. Prec. in Chan. 207. 1 Lill. Abr. 207. 3 Salk. 154. Doug. 1 .572. Bull. N.P. 21. Old Law oƒ Ev. 66. Tri. per Pais. 232. 3 Journ. oƒ Cong. 493. 12th November, 1777.
This fubject has been very ingenioufly difcuffed. It is in a great meafure new ; fo far, at leaft, that it does not appear to have come formally before any Court, ’till it arofe in the prefent caufe at Lancaʃter. But, at the fame time, I muft remark, that I never heard ’till then of fuch evidence being refufed ; and, without oppofition, I am certain it has very frequently been admitted.
Our law is not confined to particular precedents and cafes, but confifts in the reaʃon of them ; for, the reafon of the law, is the life of the law. I admit, that this printed copy of an act of affembly, though it purports to have been printed by the law printers of ​
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Virginia, is not fuch good evidence as a fworn copy, compared with the rolls, or an exemplification under the Great Seal ; but thefe modes of authentication are , likewife, inferior to the original law itfelf. If the Plaintiff in Error had been fued in Virginia, this printed book of the acts of Affembly would there, unqueftionably, have been good evidence ; and I can difcern no fatisfactory reafon, why, as he is fued here, the fame evidence fhould not be received, at leaft prima ƒacie ; for, although it were a forgery, and the proof in that refpect, could not on a fudden, during the fhort period of a trial, be produced; yet, in cafe of any reafonable fufpicion, the Court might referve to the point, and give the party leave upon eftablifhing the fact, to move for a new trial.
Lord Chief Juftice Willes fays, in the cafe of Omichund v. Barker, 1 Atk. 21. that “ the rules of evidence are to be confidered, as poffitive artificial rules, framed by men for their convenience in refpect to the tranfaction of bufinefs in the Courts of Juftice;” but there has been no rule eftablifhed, as far as my knowledge extends, concerning the evidence now under confideration. It has been a rule in the Courts of Great-Britain, “ to allow fuch proof as they beyond the fea will allow.” This, however, muft be fubject to reftrictions: And, although the general principle and rule of evidence is, “ that the beft evidence the nature of the thing will admit, fhall be given,” yet, by conftant practice and allowance of the Judges, this rule is frequently difpenfed with. Were it not, indeed, for this, controverfies in Courts of Juftice would be entangled with too many difficulties , and attended with too great trouble and expence, to permit men to feek for redrefs of many wrongs in a legal way. The fame reafon, that would induce this Court to require a law of Virginia to be proved as any other fact, muft induce them to infift upon the like proof of the Laws of every other State, kingdom, or empire, however remote ; a pofition pregnant with intolerable inconvenience; deftructive to trade, commerce, and credit ; and, in feveral cafes, fatal to juftice.
Though the practice of the Courts, or forms of pleadings, which pafs ʃub ʃilentio, do not make the law ; yet, in a cafe like the prefent, a conftant practice of permitting acts of Affembly, or laws to be read out of printed books, without oppofition, is a great evidence of the law ; and fuch printed copies, being of public notoriety, and relied on as genuine, have the prefumption of authenticity, in their favor, and afford a reafonable fatisfaction to the mind of their truth and accuracy.
Upon the whole, therefore, I am of opinion, that the Court below erred in the rejection of the evidence in queftion ; and that for the caufe only, the judgment ought to be reverfed.
With refpect to the errors alledged againft the ʃecond record, they have all, except one, been confidered and difallowed, in the courfe of the preceding obfervations. The one that remains to be decided is, that the Court below, on motion of the Counfel ​
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for the Plaintiff there, permitted the declaration to be amended by the writ, after the Jury had been fworn; and then had the Jury fworn again, and received their verdict, without confent, without giving the Defendant liberty to plead anew, and without an imparlance, or awarding the payment of cofts by the Plaintiff.
In fupport of this objection, it has been urged, that the amendment was an alteration in fubftance, and changed the nature of the defence ; that there is no precedent of fuch an amendment after the Jury was fworn, therefore, it is hoped, that the Court will not enlarge the precedents of the amendments, by making a new one ; and that the Court below had no power to difcharge the Jury after fworn, without confent ; or , if they had, that they ought to have granted an imparlance. Stiles' Pract. Reg. 45. 49. Salk. 47. 3Lev. 347. Carth. 465. 2Black. Rep. 785. 2Stra. 890. Fitz. 193. 3Bac. Abr. 236. Gilb. Pract. C.P. 79. 80.
On the other fide, it was infifted, that the amendment was only to make the declaration conformable to the writ ; that the merits came before the Jury, and the caufe was fairly tried ; and that fuch an amdendment may be made at any time. 3 Black.Com. 406. Conyngh. Rep. 43. 2 Bur. 756. 5 Burr. 2834. 3 Lev. 347. Sir T. Raym 53. 4 Burr. 2569. Cowp. 841. 1 Wilʃ. 7. 4. Bac. Abr. 30. Comb. 13. 2 Vin. Abr. 326.
The Court would willingly fupport this proceeding, if they legally could ; for, they are no friends to exceptions like the prefent, where the merits have been fairly tried. But we can find no cafe, or opinion, to favor it in all its parts. I have met with but one, which mentions, that “ after a Jury fworn, fometimes a Juror is withdrawn, on purpofe that there may be an amendment, if it be not entered upon record.” This cafe was not mentioned at the bar, but is reported in Comberbach 419. Rex v. Edwards.
Suppofe, however, that the Court had given the Plaintiff leave to make the amendment before the trial, which they might unqueftionably have done, as the nature of the action was not thereby changed ; yet, it was in the election of the Defendant, either to take cofts of the Plaintiff, or to impart to the the next term ; for, he had a right to advife upon a plea fitting the declaration fo amended ; or, if the amendment did not, in his opinion, require an alteration of the plea, he might take the cofts, and enter the fame plea immediately. At all events, I think, he ought to have been allowed, if he pleafed, to plead again after the amendment, and fo join a new iffue. 1 Lill. Abr. 70. d. 71. a. Comb. 58. 2 Stra. 950. And I have found two cafes in Judge Jenkins's Centuries, in which it is held, that a Jury difcharged before the verdict, fhall not be charge again, but there muft be a new venire ƒacias. Jenk. Cent. 6. ca. 9. Ibid. 283. ca. 13.
Since, then, the facts relating to the amendment appear upon the record, I am of opinion, that the proceeding of the Court below was erroneous : And this judgment, alfo, ought, therefore, to be reverfed. ​
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ATLER, Juʃtice :––In thefe two caufes of John Thompʃon, Pliff. in Error, v. John Muʃʃer, I concur with THE CHIEF JUSTICE in every point except two.
One of thefe is the objection refpecting the Virginia act, and the other is the mis-trial. As to the firft, it feems, that the Juftice below, on the trial of the caufe, refufed to admit in evidence, on the part of Thompʃon, a printed paper, faid to be an act of Affembly of the State of Virginia, upon which a bill of exceptions was filed ; and this is now affigned as one caufe of error.
Had the act come before them exemplified under the feal of the State of Virginia, the Court ought certainly to have admitted it, as it would then have been within the rule of law, which requires the utmoft evidence the nature of the fact is capable of ; but, as it was offered to them without fuch exemplification, or any proof of its being compared with the records of that State or even of its being printed by the Printer of the Laws of the State, I cannot join in the opinion, that the Juftices below have erred in rejecting it ; or, that their having refufed to admit it in evidence in that fituation, is a fufficient caufe for the reverfal of their judgment. It was offered to proved a fact refpecting a certain clafs of Virginia certificates ; and from the fact of it, I think it will appear, that it is not the whole law of the State refpecting thofe certificates. This might have been a reafon with the Court below for rejecting it, and I fhould have though it a fufficient one ; for a record is not to be taken by parcels, and the whole is evidence, or none.
We are to pay a due regard to the laws of our Sifter States, when we are under the neceffity of determining upon contracts which have taken place within thofe States, and have reference to thofe laws : but we are to be cautious, and not to fuffer ourfelves to be impofed on. Exemplifications are eafily obtained, and they are not expenfive. We find that the Judges in England have generally had the precaution to require exemplifications of acts of Parliament, which did not concern the kingdom in general, properly compared and certified, before they would admit them in evidence in their Courts of Juftice ; though made within kingdom, they do not deem themfelves obliged by their offices to take notice of them without fuch exemplification. And fo, I think it is a proper and neceffary precaution in the Courts here, to require certified copies of the laws of our Sifter States, before they are admitted with us ; efpecially when they appear before us, as this did, in pamphlets of a few fheets, not bound up with their body of laws ; and, as we are not obliged, and cannot be fuppofed, to know their laws, it feems the more neceffary.
As to the mis-trial in one of the caufes, it feems to me, that the parties themfelves at the time of the trial, waved every advantage that might have been taken of it. They permitted the amendment, and went on to trial without demanding an imparlance ; the merits of the caufe were fully heard ; and, after the Jury left ​
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the bar, the Counfel on both fides agreed, by writing under their hands, that the verdict fhould be taken by the Clerk of the Court agreeably to what fhould appear to be the intent of the Jury, and that they would mould it into form. After this conduct, and fuch proceedings, I think the objection ought not to be fupported.
But, as any brethren think differently from me on thefe points, the judgment in both caufes muft be reverfed.
Rush,Juʃtice. :–– There can be no doubt, that the laws of Virginia are evidence; but the queftion before the Court is, in what manner fhall they be authenticated, in order to render them admiffible evidence to a Jury?
Upon eʃtabliʃhed rules of law, and, alfo, on general principles, I am of opinion, that the Virginia act, printed by the Government Printer, ought to have been given in evidence to the Jury.
No evidence fhall be received, which fuppofes a ftill greater evidence behind, in the parties own poʃʃeʃʃion and power. On this ground, the printed act ought to have been laid before the Jury ; becaufe, it cannot be faid, that eitehr the original, or a copy under feal, was in his poʃʃeʃʃion or power. Both might have been refufed to him at the office in Virginia; and this Court, having no controul over the office, could not have given any relief. All laws fhould be conftrued , as far as may be, fo as to guard againft what men may do; and not to truft to what they will do.
Sir William Blackʃtone, in the third volume of his Commentaries, page 336, fpeaking of the Court of Chancery, fays, “ If a queftion
“ comes before that Court, or a Court of Law, which is properly
“ the object of a ƒoreign municipal law, they will both receive information
“ what is the rule of the country, and will both decide
“ accordingly. Both Courts follow the Law of Nations, and collect
“ it from hiʃtory, and the moft approved authors of all countries,
“ where the queftion is the object of that law ; as in the cafe of the
“ privileges of ambaffadors, hoftages, or ranfom bills. In mercantile
“ ufages and authorities received in all countries.” From this language, it would feem, to be the opinion of the author, that the fame evidence, which any Court abroad would have received, would alfo be received in England, where the fubject in litigation requires it.
If, then, the Virginia law might have been given in evidence in that country, of which there can be no doubt ; it was the duly of the Court in Pennʃylvania to have received information of the rule, or law, of Virginia, from the fame fource that would have been fatisfactory to the Judges there. Every country has a right to promulgate its laws as it pleafes; and whatever printed authorities are received in a foreign country as evidence of its laws, are, in my opinion, evidence of the fame laws to a Court and Jury in Pennʃylvania. ​
1789.
To the larger record, as it was called at the bar, to diftinguifh it from the other, a fecond objection has been made, to wit, the declaration does not fay, that the Defendant neglected to pay or deliver 100,000 weight of tobacco ; the declaration being on a penal bill. With regard to this point, I rather think that the verdict will not cure the objection. The cafe in Cro. Car. 515. Baynes v. Brighten, feems to be in point. Debt was brought for forty fhillings ; and the declaration was held till after verdict, becaufe the Plaintiff had not alledged, that the twenty fhillings were not due. I am induced to lay the more ftrefs on this authority, becaufe the principle of that cafe is recognized both in Douglass and Salkeld's reports. In Dougl. 657. by a recent and folemn decifion of the whole Court, it has been held, that if the indorfee does not prove at the trial a demand on the acceptor and refufal, even a verdict, in fuch cafe, will not help him. The well known cafe of omitting the Scienter is there admitted to be law. The cafe is exprefsly referred to as reported in Salk 662. The declaration was, that the Defendant kept a bull that ufed to run of men, but did not fay ʃcienter, &c. This was held till after verdict ; for the action does not lie, unlefs the mafter knows of this quality ; and the Court cannot intend it was proved at the trial, as the Plaintiff need not prove more than was in his declaration. So in the cafe of bar : the Court cannot intend that the Plaintiff proved at the trial, that the Defendant did not pay, or deliver, 100,000 weight of tobacco ; becaufe, not being alledged in the declaration , the Plaintiff was not under any neceffity of proving it.
With refpect to the other objections to the larger record, I entirely concur with my Brethren.
I concur, alfo, that there has been a mis-trial in the other caufe tried between the fame parties. Black. Rep. 85. is in point. Where the declaration is amended in a material point, a rule fhould be given to plead. If the Plaintiff has a right to amend, he is alfo bound at the fame time to give a rule to plead, that the Defendant may not be furprifed at the trial ; and, omitting to do fo, is error.
The Jury was fworn to try the precife and identical iffue joined by the pleadings ; and if that was afterward altered or changed by the Plaintiff, the verdict will not help it ; becaufe a verdict will not help that which was not in iʃʃue. Gilb. Hiʃt. and Pract. Com. Pleas. p 100.
The Court below had no power to difcharge the Jury after they were fworn, without the confent of both parties. It is true, that in 2 Stra. 1117, it appears, that a Jury was difmiffed after they were fworn, becaufe no iʃʃue was joined. But as there was an iffue joined in the caufe of Muʃʃer and Thompʃon, the Court below have acted erroneoufly, and contrary to the law in difcharging the Jury without the confent of both parties.
I think, upon the whole, that judgment fhould be reverfed in both caufes. ​
1789.
BRYAN, Juʃtice:–– As I agree entirely in the opinions given by the Chieƒ Juʃtice, for the reafons which he has affigned, I fhall content myfelf with generally declaring, that I think the judgments on thefe records ought both to be reverfed.
by the court :––Let the judgment of the Court below, on both records, be fet afide.