THOMPSON v. MUSSER, 1 U.S. 458 (1789)

U.S. Supreme Court

THOMPSON v. MUSSER, 1 U.S. 458 (1789)  1 U.S. 458 (Dall.)

Thompson Pls. in Err. v. Musser: Two Actions

Supreme Court of Pennsylvania September Term, 1789

These actions were removed by writs of Error from the Common Pleas of Lancaster County; and, on return of the respective records, the proceedings appeared to have been as follows: I. On the first, or larger, record, it appeared, that a Capias in an action of Debt in the Detinet, issued at the suit of John Musser against John Thompson, for 200,000 weight of tobacco; and the declaration set forth a penal bill, dated the 3rd of January, 1784, by which John Thompson binds himself in the penalty of 200,000 weight of net crop tobacco, of the inspection of Fredericksburgh, or Falmouth, on Rappahannock river, in Virginia, to pay 100,000 weight of tobacco, of the same inspection, to John Musser, or his assigns, as soon as it could be collected of those who are indebted to the said John Musser, and the Obligor; but the said John Thompson agrees, that, in case it cannot be collected, or obtained, he will be answerable for the same.' After Oyer of the bill, the defendant pleaded payment, the Plaintiff replied non solvit, and thereupon issue was joined. The cause was tried at Lancaster, 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 Fredericksburgh, on the 1st 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 Musser'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 indenture last made between them, a memorandum was endorsed, dated the 3rd of January, 1784, setting forth the receipt of the two penal bills, on which the present actions were brought, and declaring that the same, when paid, were to go in discharge of what was due from Thompson to Musser. Several letters were read from the latter to the former, in which it was confessed, 'that Musser had no other claim, but upon these bonds, against Thompson, and that every payment

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which had been made since they were given, was on their account. The payment of a note for L. [Footnote 46] was then proved, and an agreement, which had been entered into by Musser, that 'on the payment of L450 specie, and the remainder that may appear due in warrants on the Treasurer of the State of Virginia, which are received there in taxes at par, or equal to gold and silver, allowing Musser at the rate of 12 1/2 per cent. on the whole amount of the said warrants, the same shall be a sufficient discharge of the bill.' To prove the payment of Virginia warrants, according to the terms of the foregoing agreement, a receipt was produced from Musser's Attorney, dated the 5th of July, 1786, to this effect: 'Received from John Thompson, L.1668.11. 6 1/2 Virginia currency in warrants on the Treasury of Virginia, which is settled in specie, at L1484.4.4. Virginia currency; being in full payment of his bond to John Musser, dated the 3rd of January, 1784, for 100,000 weight of net crop tobacco, of the inspection of Fredericksburgh, or Falmouth, in Virginia.' And, in order to show that the warrants thus paid, were receivable in taxes, at par, or equal to gold and silver, the Counsel for the Defendant below, offered to read an act of the Legislature of Virginia, (which contained a recital of a preceding act) on that subject, from a pamphlet, stitched in blue paper, with the following title page: 'Acts passed at a General Assembly of the Commonwealth of Virginia, begun and held at the public buildings in the city of Richmond, on Monday the 3rd day of May, in the year of our Lord 1784. Richmond: Printed by John Dunlap, and James Hayes, 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 of Exceptions to their opinion was tendered and allowed.

The Jury gave a verdict for Musser, saying, that 'They find 114,236 weight of net crop tobacco, of the inspection of Fredericksburgh, or Falmouth, on Rappahannock river, to be due to the Plaintiff from the defendant, value L2000, with sixpence damages and sixpence costs.' Whereupon judgement was entered generally.

II. On the second, or smaller, record, it appeared, that an action of debt in the detinet, for 200,000 weight of net crop tobacco, of the inspection of Richmond, or Petersburgh, in Virginia, was brought on another penal bill of the same date, by which 'John Thompson binds himself in the penalty of 200,000 weight of tobacco, to pay to John Musser, 100, 000 weight of tobacco, of the last mentioned inspection, at or before the 1st of May next ensuing the date of the bill.' The pleadings were the same in this, as in the preceding case; but the declaration being erroneously for tobacco of the inspection of 'Fredericksburgh, or Falmouth, in Virginia, on Rappahannock river, the Plaintiff's counsel, after the Jury were sworn, moved to amend the declaration, agreeably to the tenor and purport

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of the writ, by striking out those words, and inserting, 'Richmond, or Petersburgh;' which the Court allowed, without the consent of the Defendant, and directed the same Jury to be again immediately sworn for the trial of the cause. This being done, and the Jury gone from the bar, the attornies of both parties, signed an agreement, that, 'as it was then very late, the Prothonotary of the Court might receive the verdict, and that, if necessary, they would afterwards mould it into form.' The verdict then finds, '17,853 weight of net crop tobacco, of the inspection of Richmond, or Petersburgh, in Virginia, to be due to the Plaintiff from the defendant, on the bill aforesaid, and the true value thereof to be L 446.6. 6. Pennsylvania currency, with sixpence damages, and sixpence costs:' Whereupon judgment was also entered generally. Upon these records the general errors were assigned, and in nullo est erratum pleaded in both causes. They were argued together, first at Lancaster, and, afterwards, in two different terms, at Philadelphia, by Bradford, Lewis, and Wilson, for the Plaintiff in Error; and by Chambers, Hartley, Yeates, J. B. M'Kean, Sergeant, and Ingersoll for the defendant. The specific errors alledged against the first record, were four: 1st. That the declaration is for the penalty in a penal bill, but it omits to state, that John Thompson did not pay the smaller quantity of 100, 000 weight of tobacco, or a certain sum of money in lieu thereof, on the day fixed for the payment; so that no cause of action is shown to have accrued to the Plaintiff below for the penalty. 2nd. That this being an action of debt in the detinet, the verdict is erroneous, because it finds 114,286 weight of tobacco to be due to the plaintiff from the Defendant, and the true value thereof to be L,2000, which they find of debt, &c. because the finding, being of so much tobacco due to the plaintiff, is not an express determination of the issue, which is solvit and non solvit; and because the finding is not of all that was in issue, since the declaration is for 200,000 weight of tobacco, but the verdict is only for 114,286, and nothing is said of the rest. 3rd. That the judgment is erroneous, because, ensuing the nature of the verdict, it is for the value of the tobacco in money, and not for the tobacco itself; or, if that cannot be had, for the value thereof in money. 4th. That the Court below were in an error, in over-ruling the evidence of the printed copy of the act of Assembly of Virginia, which purported to have been printed by the law printers of that Commonwealth, respecting the nature and value of Treasury warrants, or certificates. The second and third of these errors, were also alledged and applied against the smaller record, with an additional exception, to wit, That after the Jury had once been sworn, the Court, without the consent of the Defendant below, discharged them, permitted

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the Plaintiff to amend his declaration, swore the Jury again, and neither gave the Defendant an imparlance, nor ordered the plaintiff to pay the costs occasioned by his faulty declaration. The causes being held under advisement for a considerable time, in hopes that a compromise would take place between the parties, the Judges now delivered their opinions separately and at large.

M'Kean, Chief Justice: The arguments on the records before the Court, have been ably and learnedly enforced. To these, and to the authorities produced on both sides, I shall briefly refer, while I consider in their order, the objections that have been made in favour of the Plaintiff in Error. 1. In support of the first objection, a variety of precedents have been shown of declarations upon penal bills from 1 Mod. Ent. 180. 28r. Brown's Mod. Intrandi, &c. &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 Bulstr. 163. Salk. 662. 2 L. Raym. 814. Carth. 322. Doctrin. Placit. 329. Co. Litt. 303. But the Counsel for the Defendant in Error have answered these cases, 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 issue; 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 smaller 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 sum really due; and that the defect, if it was one, is cured by pleading over in chief, and, also, by the verdict. In corroboration of these positions, they cited, Doug. 658. 8 Co. 133. Vaugh. 93. 4.5. 4 Bac. 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. 2 Will. 380. Cowp. 407. 1 Stra. 233. 2 Stra. 925. 1006. 1011. 1 Will. 255. 1 Salk. 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. r. 10 Vin. Abr. 3. pl. 1. 16 & 17 Car. 2.c.8. We are clearly of opinion, that this defect in the declaration, with respect 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 cause, it is cured by the plea in bar, by the verdict, and by the statutes of Jeoffails. 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 satisfied, that the smaller 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 ascertain the balance, which must have appeared from the evidence. The verdict, therefore, also aids the omission of the averment. See 3 Black. Com. 394. Carth. 389. Jenk. Cent. 21. ca. 39. Ibid. 288 ca. 24. Several of the cases cited on both sides do not apply; but all the late authorities (many of which are in point) support our judgment on this occasion. Those cases which bear a contrary aspect, occurred before the last of the statutes of Jeoffails, and previous to the more liberal decisions of modern Judges. 2 Burr, 756. The general rule, however, is now well established, that if a Plaintiff states his title in his declaration in a defective manner, it will be cured by a verdict; but not so, if the title is totally defective in itself. Cro. E. 778. 2. The second objection is to the verdict; and to prove the invalidity of that, the Counsel 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 Inst. 227. Cro. Jac. 31. Cro.E. 133. 2 Stra. 1089. 2 L. Raym. 1581. 3 Lev 55. To this the Defendant's Counsel have replied, that strict form in a verdict is not now required; that it needs only to be understood what the intention of the Jury was, agreeably to which the verdict may afterwards be moulded into form; that the constant practice in all the Courts in this State, as well before as since the Revolution, has been to enter the verdicts on the issue of non solvit in the manner that has been used in the present case; 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. 2 Lill. Abr 798. 4 Bac. Abr. 58. 59. 99. 5 Bac. Abr. 297. 298. 314. 2 Burr. 700. Cro. E. 664. The Court, concurring in these reasons, cannot allow this exception. 3. That the judgment is for money, and not for the tobacco itself, or, if that cannot be had, then for the value thereof, makes the third objection; in support of which the following books are cited; Yelv. 71. 8 Vin. Abr. 41. pl. 15. 17. 18. But it is contended on the other side, and such is the opinion of the Court, that if the verdict is good, the judgment must likewise be so; for being entered generally, when it is drawn at large, it may be put into form; and the merits having been tried, justice must 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 last error assigned in this record, respects the refusal of the Court of Common Pleas to admit the Defendant below to read in evidence, a copy of an act of Assembly of the State of Virginia, printed by the Law Printers there, and stitched 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 statute book; that a general history is a proof of a general transaction, though not of a particular one; that this is a general act, and promulgated in the usual 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 Danish islands, proclamations in our sister States, the statutes of England, Ireland, and Scotland, heralds' books, and registers', have frequently been read in evidence in this Court, because of their public notoriety. 12 Mod. 86.215. 216. 403. 12 Vin. Abr. 119. 1 Atk. 47. 2 Eq. Abr. 406. 409. Coup. 407. Gilb. L. E. 13.

In opposition to these arguments, it was contended, that the laws of Virginia ought to be proved as other facts in foreign countries; that in Great Britain private statutes must be proved, either by sworn copies, or authenticated under the Great Seal; that every man is, indeed, obliged to know the laws of his own country, for they are presumed to be in every man's breast, and the statute book contains hints of them; but the laws of Virginia are unknown in Pennsylvania, and are not in any wise obligatory upon us; that the reason why private statutes must be proved before they can be received in evidence, applies strongly to foreign acts of Assembly, for no man is obliged to know them; that an act of Assembly in print is no better verified than if it were in writing only; that this act of Assembly might have been forged, or repealed, and yet, it would be impracticable on a sudden, pending a trial, to prove it; and that there is no precedent of a determination of any Court, that such a copy is good evidence; for, indeed, it militates against the general rule of evidence, 'that the best evidence the nature of the case will admit, ought to be produced,' and a sworn copy, compared with the votes might have been had, or some other regular authentication. Gilb. L. E. 4. 5. 13. 16 17. 12 Mod, 403. 12 Vin. Abr. 129. pl. 59. Ibid. 119. 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 of Ev. 66. Tri. per Pais. 232. 3 Journ. of Cong. 493. 12th November, 1777.

This subject has been very ingeniously discussed. It is in a great measure new; so far, at least, that it does not appear to have come formally before any Court, 'till it arose in the present cause at Lancaster. But, at the same time, I must remark, that I never heard 'till then of such evidence being refused; and, without opposition, I am certain it has very frequently been admitted.

Our law is not confined to particular precedents and cases, but consists in the reason of them; for, the reason of the law, is the life of the law. I admit, that this printed copy of an act of assembly, though it purports to have been printed by the law printers of Virginia,

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is not such good evidence as a sworn copy, compared with the rolls, or an exemplification under the Great Seal; but these modes of authentication are, likewise, inferior to the original law itself. If the Plaintiff in Error had been sued in Virginia, this printed book of the acts of Assembly would there, unquestionably, have been good evidence; and I can discern no satisfactory reason, why, as he is sued here, the same evidence should not be received, at least prima facie; for, although it were a forgery, and the proof in that respect, could not on a sudden, during the short period of a trial, be produced; yet, in case of any reasonable suspicion, the Court might reserve the point, and give the party leave upon establishing the fact, to move for a new trial. Lord Chief Justice Willes says, in the case of Omichund v. Barker, 1 Atk. 21. that 'the rules of evidence are to be considered, as positive artificial rules, framed by men for their convenience in respect to the transaction of business in the Courts of Justice;' but there has been no rule established, as far as my knowledge extends, concerning the evidence now under consideration. It has been a rule in the Courts of Great Britain, 'to allow such proof as they beyond the sea will allow.' This, however, must be subject to restrictions: And, although the general principle and rule of evidence is, 'that the best evidence the nature of the thing will admit, shall be given,' yet, by constant practice and allowance of the Judges, this rule is frequently dispensed with. Were it not, indeed, for this, controversies in Courts of Justice would be entangled with too many difficulties, and attended with too great trouble and expence, to permit men to seek for redress of many wrongs in a legal way. The same reason, that would induce this Court to require a law of Virginia to be proved as any other fact, must induce them to insist upon the like proof of the Laws of every other State, kingdom, or empire, however remote; a position pregnant with intolerable inconvenience; destructive to trade, commerce, and credit; and, in several cases, fatal to justice. Though the practice of the Courts, or forms of pleadings, which pass sub silentio, do not make the law; yet, in a case like the present, a constant practice of permitting acts of Assembly, or laws to be read out of printed books, without opposition, is a great evidence of the law; and such printed copies, being of public notoriety, and relied on as genuine, have the presumption of authenticity, in their favor, and afford a reasonable satisfaction 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 question; and that for this cause only, the judgment ought to be reversed. With respect to the errors alledged against the second record, they have all, except one, been considered and disallowed, in the course of the preceding observations. The one that remains to be decided is, that the Court below, on motion of the Counsel

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for the Plaintiff there, permitted the declaration to be amended by the writ, after the Jury had been sworn; and then had the Jury sworn again, and received their verdict, without consent, without giving the Defendant liberty to plead anew, and without an imparlance, or awarding the payment of costs by the Plaintiff. In support of this objection, it has been urged, that the amendment was an alteration in substance, and changed the nature of the defence; that there is no precedent of such an amendment after the Jury was sworn, therefore, it is hoped, that this Court will not enlarge the precedents of amendments, by making a new one; and that the Court below had no power to discharge the Jury after sworn, without consent; or, if they had, that they ought to have granted an imparlance. Stiles' Pract. Reg. 45. 49. Salk. 47. 3 Lev.347. Carth. 465. 2 Black. Rep. 785. 2 Stra. 890. Fitz. 193. 3 Bac. Abr. 236. Gilb. Pract. C. P. 79. 80. On the other side, it was insisted, that the amendment was only to make the declaration conformable to the writ; that the merits came before the Jury, and the cause was fairly tried; and that such an amendment may be made at any time. 3 Black. Com. 406. Conyngh. Rep. 43. 2 Burr. 756. 5 Burr. 2834. 3 Lev. 347. Sir T. Raym. 53. 4 Burr. 2569. Cowp. 841. 1 Wils. 7. 4 Bac. Abr. 30. Comb. 13. 2 Vin. Abr. 326. The Court would willingly support this proceeding, if they legally could; for, they are no friends to exceptions like the present, where the merits have been fairly tried. But we can find no case, or opinion, to favor it in all its parts. I have met with but one, which mentions, that 'after a Jury sworn, sometimes a Juror is withdrawn, on purpose that there may be an amendment, if it be not entered upon record.' This case was not mentioned at the bar, but is reported in Comberbach 419. Rex v. Edwards. Suppose, however, that the Court had given the Plaintiff leave to make the amendment before the trial, which they might unquestionably have done, as the nature of the action was not thereby changed; yet, it was in the election of the Defendant, either to take costs of the Plaintiff, or to imparl to the next term; for, he had a right to advise upon a plea fitting the declaration so amended; or, if the amendment did not, in his opinion, require an alteration of the plea, he might take the costs, and enter the same plea immediately. At all events, I think, he ought to have been allowed, if he pleased, to plead again after the amendment, and so join a new issue. 1 Lill. Abr. 70. d. 71. a. Comb. 58. 2 Stra. 950. And I have found two cases in Judge Jenkins's Centuries, in which it is held, that a Jury discharged before verdict, shall not be charged again, but there must be a new venire facias. 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, also, ought, therefore, to be reversed.

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Atlee, Justice: In these two causes of John Thompson, Pltff. in Error, v. John Musser, I concur with the Chief Justice in every point except two. One of these is the objection respecting the Virginia act, and the other is the mis-trial. As to the first, it seems, that the Justices below, on the trial of the cause, refused to admit in evidence, on the part of Thompson, a printed paper, said to be an act of Assembly of the State of Virginia, upon which a bill of exceptions was filed; and this is now assigned as one cause of error. Had that act come before them exemplified under the seal 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 utmost evidence the nature of the fact is capable of; but, as it was offered to them without such 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 Justices below have erred in rejecting it; or, that their having refused to admit it in evidence in that situation, is a sufficient cause for the reversal of their judgment. It was offered to prove a fact respecting a certain class of Virginia certificates; and from the face of it, I think it will appear, that it is not the whole law of the State respecting those certificates. This might have been a reason with the Court below for rejecting it, and I should have thought it a sufficient 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 Sister States, when we are under the necessity of determining upon contracts which have taken place within those States, and have reference to those laws: but we are to be cautious, and not to suffer ourselves to be imposed on. Exemplifications are easily obtained, and they are not expensive. 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 Justice; though made within the kingdom, they do not deem themselves obliged by their offices to take notice of them without such exemplification. And so, I think it is a proper and necessary precaution in the Courts here, to require certified copies of the laws of our Sister States, before they are admitted with us; especially when they appear before us, as this did, in pamphlets of a few sheets, not bound up with their body of laws; and, as we are not obliged, and cannot be supposed, to know their laws, it seems the more necessary. As to the mis-trial in one of the causes, it seems to me, that the parties themselves, 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 cause were fully heard; and, after the Jury left

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the bar, the Counsel on both sides agreed, by writing under their hands, that the verdict should be taken by the Clerk of the Court agreeably to what should appear to be the intent of the Jury, and that they would mould it into form. After this conduct, and such proceedings, I think the objection ought not to be supported. But, as my brethren think differently from me on these points, the judgment in both causes must be reversed.

Rush, Justice: There can be no doubt, that the laws of Virginia are evidence; but the question before the Court is, in what manner shall they be authenticated, in order to render them admissible evidence to a Jury? Upon established rules of law, and, also, 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 shall be received, which supposes a still greater evidence behind, in the parties own possession and power. On this ground, the printed act ought to have been laid before the Jury; because, it cannot be said, that either the original, or a copy under seal, was in his possession or power. Both might have been refused to him at the office in Virginia; and this Court, having no controul over that office, could not have given any relief. All laws should be construed, as far as may be, so as to guard against what men may do; and not to trust to what they will do. Sir William Blackstone, in the third volume of his Commentaries, page 336, speaking of the Court of Chancery, says, 'If a question comes before that Court, or a Court of Law, which is properly the object of a foreign 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 history, and the most approved authors of all countries, where the question is the object of that law; as in the case of the privileges of ambassadors, hostages, or ransom bills. In mercantile transactions, they follow the marine law, and argue from the usages and authorities received in all countries.' From this language, it would seem, to be the opinion of the author, that the same evidence, which any Court abroad would have received, would also be received in England, where the subject 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 duty of the Court in Pennsylvania to have received information of the rule, or law, of Virginia, from the same source that would have been satisfactory to the Judges there. Every country has a right to promulgate its laws as it pleases; and whatever printed authorities are received in a foreign country as evidence of its laws, are, in my opinion, evidence of the same laws to a Court and Jury in Pennsylvania.

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To the larger record, as it was called at the bar, to distinguish it from the other, a second objection has been made, to wit, that the declaration does not say, 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 case in Cro. Car. 515. Baynes v. Brighton, seems to be in point. Debt was brought for forty shillings; and the declaration was held ill after verdict, because the Plaintiff had not alledged, that the twenty shillings were not paid at the day: for, otherwise, the forty shillings were not due. I am induced to lay the more stress on this authority, because the principle of that case is recognized both in Douglas and Salkeld's reports. In Dougl. 657. by a recent and solemn decision of the whole Court, it has been held, that if the indorsee does not prove at the trial a demand on the acceptor and refusal, even a verdict, in such case, will not help him. The well known case of omitting the Scienter is there admited to be law. The case is expressly referred to as reported in Salk. 662. The declaration was, that the Defendant kept a bull that used to run at men, but did not say scienter, &c. This was held ill after verdict; for the action does not lie, unless the master 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 case at 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; because, not being alledged in the declaration, the Plaintiff was not under any necessity of proving it. With respect to the other objections to the larger record, I entirely concur with my Brethren. I concur, also, that there has been a mis-trial in the other cause tried between the same parties. Black. Rep. 785. is in point. Where the declaration is amended in a material point, a rule should be given to plead. If the Plaintiff has a right to amend, he is also bound at the same time to give a rule to plead, that the Defendant may not be surprised at the trial; and, omitting to do so, is error. The Jury was sworn to try the precise and identical issue joined by the pleadings; and if that was afterward altered or changed by the Plaintiff, the verdict will not help it; because a verdict will not help that which was not in issue, Gilb. Hist. and Pract. Com. Pleas. p. 100. The Court below had no power to discharge the Jury after they were sworn, without the consent of both parties. It is true, that in 2 Stra. 1117. it appears, that a Jury was dismissed after they were sworn, because no issue was joined. But as there was an issue joined in the cause of Musser and Thompson, the Court below have acted erroneously, and contrary to law, in discharging the Jury without the consent of both parties. I think, upon the whole, that judgment should be reversed in both causes.

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Bryan, Justice:

As I agree entirely in the opinions given by the Chief Justice, for the reasons which he has assigned, I shall content myself with generally declaring, that I think the judgments on these records ought both to be reversed.

By The Court: Let the judgments of the Court below, on both records, be set aside.