MAY v. BABCOCK, ET AL.

A receipt may be explained by parol.

Where a bill of lading was signed by the master of a vessel, acknowledging the receipt of certain goods, and stating that they were to be transported from Buffalo to Cleveland, the dangers of the Jakes and rivers only excepted; held, that the legal effect of this agreement was to convey the goods from Buffalo to Cleveland, by the most direct route, conveniently adapted to that purpose; and inat a parol agreement between the master and shipper, before and at the time of executing the 2% of lading, permitting the master to deviate from the usual course, was inadmissible evidence in an action by the shipper against the owners of the vessel, to recover for the loss of the goods.

Parol evidence of the custom of navigating Lake Erie, is admissible, not for the purpose of vary ing a written contract, but for the purpose of carrying it into execution, as understood by the parties.

This was an action of Assumpsit, brought against the defendants, as owners of the schooner America, to recover the value of two hundred and five barrels of salt, shipped on board the America, at Buffalo, in the state of New Yo.k, to be delivered at Cleveland, in the state of Ohio, and which was lost upon Lake Erie.

Upon the trial, before the Supreme Court, in the county of Cuyahoga, the plaintiff offered in evidence the following bill of lading.

No. 197.

SHIPPED in good order, and well conditioned, by S. Thomp son & Co., on board the schooner called the America, whereof is master, for this present voyage, Z. Brown, now lying in the port of Buffalo, and bound for Cleveland, Ohio.

TO SAY:

For Merwin Giddings & Co. 113 barrels, containing 120 50-280 barrels salt by weight.

S. P. Babcock-192 barrels, containing 205 barrels salt by weight.
Shipping charges $3,20.

Charged M. G. & Co.

S. S. & Co.

per Taylor:

being marked and numbered as in the margin, and are to be delivered in the like good order, and well conditioned, at the aforesaid port of Cleveland, the danger of the Lakes and Riv. ers only excepted, unto Merwin Giddings & Co., they poying freight for the said salt at 2-8 per barrel, when delivered at their ware-houses. In witness whereof, the master of the col vessel hath affirmed to one bill of lading, all of this tenor date, the one of which bills being accomplished, the other to stand void. Dated in Buffalo, the 21st of October, 1827. ZADOC BROW

It also appeared, that the America, being heavily laded, deviated from s usual and direct course from Buffalo to Cleveland, for the purpose of gol the port of Otter creek, in Upper Canada, and during the voyage, the salt weg unavoidably lost, on the Canadian coast, in a storm.

The defendants then offered in evidence the manifest, duly proved, by the collector of the port at Buffalo, by which it appeared, that the America was authorize to proceed to Cleveland, via Otter creek; and also the depositions of certain persons, y which it appeared, that John L. Kimberly, of the firm of S. Thompson & Co., who acted as shipping and forwarding merchant for the plaintiff, the shipment of the salt, verbally agreed that the master of the schooner might go to Cleveland by the way of Otter creek, and that the master refused to take the salt on board the schooner upon any other terms. To this testimony the plaintiff objected, and the court sustained the objection. A verdict was found for the plaintiff, and a motion for a new trial was made by the defendants, which motion was reserved for the decision of this court.

Case, in favor of the motion. Willey and Stirling, contra.

By the COURT.

That a receipt may be explained by parol evidence, is a principle too familiar, to require authorities for its support. The bill of lading is a contract including a receipt. It is a contract, admitting the reception of certain goods, with an . agreement to carry them to the port of discharge; and the only doubt in the case, is, whether the terms of this agreement, as reduced to writing, in the bill of lading, can be varied by parol. If the actual reception of the salt by the master, was the point in controversy, a different question would be presented. Such a case might come within the general rule of law, applicable to all receipts. But, in this case, it is agreed by all parties, that the salt was actually received by the defendants, or their agent; and the only question is, whether the agreement, for the transportation of the salt thus admitted to be received, can be changed by parol testimony.

The legal effect of this agreement, as reduced to writing, is, to carry the goods from Buffalo to Cleveland, by the most direct route, conveniently adapted to that purpose, dangers of the seas, &c. excepted. The defendants seek to avoid this legal effect, and the consequences resulting from its violation, by showing that it was a part of the agreement, that the schooner might touch at Otter creek, a place out of the regular course, and where she could not go, except by such agreement, and that the master refused to receive the salt upon any other terms. This evidence comes within the direct operation of the rule, that you shall not engraft a parol condition upon a written contract. (Sergt. and Rawl. 469, B. Moore 535. 1, Starkie, N. V. 361.)

We considerthis point of the case settled in 2 Conn. Rep. 9. "Where the master of a vessel, receiving goods for transportation, gave the shipper a writing, acknowledging the receipt of goods, and stating that they were to be transported to the place of destination, at customary freight, dangers of the seas excepted:-It was held that a parol agreement, between the shipper and master, before and at the time of giving the writing, as to the mode of stowing the goods, was inadmissible to shew the terms of shipment, as all such communications between the parties, are to be considered as merged in the writing."

But is said, that the court, in this case, admitted parol evidence of the custom of navigating Lake Erie. Evidence of this character is admissible, not to vary the contract, but for the purpose of carrying it into execution, as understood by

the parties. This principle is laid down with great precision and force in 9 Wheaton 587. There is no rule of law better settled, or more salutary in its application to contracts, than that which precludes the admission of parol evidence, to contradict, or substantially vary the legal import of a written agree. ment. Evidence of usage or custom is, however, never considered of this character, but is received for the purpose of ascertaining the sense and understanding of parties, by their contracts, which are made with reference to such usage or custom; for the custom then becomes a part of the contract, and may not improperly be considered the law of the contract; and it rests upon the same principles as the doctrine of the lex loci. All contracts are to be governed by the law of the place where they are to be performed; and this law may be, and usually is, proved as matter of fact. (a.)

The evidence of the collector of the port, to show that the vessel was at liberty to visit the Canada shore, without incurring a forfeiture, can have no effect as between these parties; and is also liable to the same objections as the other testimony rejected.

Motion overruled.

(a.) See Doug. 511. 4 Mass. 155. 3 Day. 346. 1 Caines. 43. 18. John. 220 5. Crouch. 492.

HOOKER v. THE STATE OF OHIO.

The right of peremptory challenge may be reserved, by the party accused, until after he has made all his challenges for cause.

Where the prisoner is indicted for stealing a grey horse, proof that the animal stolen was a grey gelding, is a fatal variance.

Error to the court of common pleas of Ross county.-Hooker was indicted for horse stealing. On the trial, two bills of exceptions were taken.

The first stated, that after the prisoner had pleaded to the indictment, and the jurors called and empannelled, the prisoner moved the court to discharge one of the jurors for cause; but the court refused the motion until the prisoner should have made all his peremptory challenges.

The second bill of exceptions stated, that upon the trial, it was proved to the jury, that the animal stolen by the prisoner, was a grey gelding, and not a grey horse, as charged in the indictment; and thereupon the counsel for the prisoner moved the court to instruct the jury, that the prisoner could not be found guilty, if the jury were satisfied that the animal stolen was a grey gelding, which instructions the court refused.

By the COURT.

FIRST: In the administration of criminal justice, it is of the first importance to secure an impartial tribunal. For this reason, the law gives to the party ac cused, the right of challenge. This right may be exercised, indefinitely, upon cause shown, and to a limited extent, without cause, or peremptorily. The question is, whether this right of peremptory challenge, may not be reserved.

by the party accused, until after he has made all his challenges for cause. Prejudices often exist, for which no cause can be assigned. The personal appear. ance of an individual often creates the most unaccountable prejudices. The me challenge, for cause, may provoke resentment, if the reason assigned prove insufficient to set aside the juror. The trial of a juror, challenged for came, may excite a prejudice, which does not amount to a legal disqualificaon, but to the influence of which, the party accused ought not to be compelled submit. For these reasons, the law has wisely provided, that the right of o poraptory challenge, out to be held open, for the latest possible period, to wit. up to the actual swearing of the jury. (4 Black. Comm. 366, 4 Har. St. T. 756, 739, 740, 750. Bac. Ab. jury, E. U. Done, Sig. 329.

SECOND: The objection raised, by the second bill of exceptions, seems too insignicant to demand a serious consideration. The term horse, being a genezik name, ought to include every variety of the animal, as diversified, by age, sex, occupation, or modification.

The English authorities however, and which have been recognized in several states of the union, as sound law, are too strong to be resisted, and too pointed to be evaded. It is the duty of the court, not to make, but to declare the law. Ita lex scripta est, precludes all inquiry into the reasonableness or propriety of the objection.

Judgment reversed.

THE STATE OF OHIO v. TODD, ET AL.

A mandamus may issue to the court of common pleas to sign a true bill of exceptions; but not to sign a particular bill of exceptions whether true or not.

The power of determining whether a bill of exceptions is true or not, is vested in the judges, to whom it is presented for signature.

At the August term of the Supreme Court in Ashtabula county, in the year 1826, Atkins obtained a rule upon the defendants, to show cause, at the next term, why a mandamus should not issue, commending them to sign a certain ll of exceptions, tendered on a trial, in the court of common pleas. At the August term, 1827, the rule was extended to the next term. At the August term, 1828, the defendant's having failed to show cause, the rule was made absolute, and a peremptory mandamus awarded. At the August term, 1829, the defendants, Todd and Kellogg, appeared, and having satisfied the court, that they had omitted to show cause against the rule, under a misapprehension of the course of proceedings, in cases of the sort, and that no intentional contempt was committed; the rule for a peremptory mandamus was vacated, and cause permitted to be shewn. Hays, one of the associate judges, had complied with the peremplory mandamus, and signed the bill of exceptions. Keller, another of the associates, was dead. The defendants, Todd and Kellogg, showed for cause, that to the best of their recollection and belief, the bill of exceptions did not contain a true statement of the facts, and that they believed such statement untrue, and coloured, and therefore they refused to sign it, &c. The case was

thus continued to August term, 1830, when it was reserved for decision in this

court.

Giddings, for the plaintiff.

By the COURT

The authority to issue a mandamus, in a case like the present, cannot be doubted. The power is incident to supervising courts, and there are instances of its exercise, both in England, and in our own country.

But this power is to be exercised in such a manner, as best to promote the advancement of justice, and the only legitimate object of its exercise, in cases of this sort, is to compel the Court below, to place upon the record, a true state. ment of the facts as they existed.

The bill of exceptions, is in practice, and by law, to be signed and sealed only, not to be prepared by the judges: the only obligation upon the judges, is, to sign and seal a true bill of exceptions.

But the object of the relator is, not to compel the judges to sign a correct bill of exceptins, but to sign the bill offered. The motion in 1827, is for a manda. mus to sign the bill presented, or show cause, &c. The cause shown, is that the bill presented did not contain a true statement of the facts. It does not appear that the judges refused to sign any and every bill of exceptions: but they refused to sign the bill presented, because it was not true. The power of determining whether a bill of exceptions is true, or not, is vested in the judges, to whom it is presented for signature. In this case, that power has been exercised, and the return of the judges shows, that the bill as tendered, was not true. In this matter, thus presented, we may adopt the language of the Chief Justice of the United States, in a case that bears a very close resemblance to the present. (4, Pet. 106. "If the Court had granted a rule to sign the bill of exceptions, the judge could have returned that he had performed that duty. But the object of the rule is to oblige the judge to sign a particular bill of exceptions which had been offered to him, The court granted the rule to show cause, and the judge has shown cause, by saying that he has done all that can be required of him: and the bill is not such an one as he can sign. Nothing is more manifest, than that the court cannot order him to sign such a bill of exceptions."

If the return be false, or if there be a refusal to sign any bill of exceptions, we need not indicate a remedy.

The rule for a mandamus is discharged, and the case remitted, that the relator may apply for a mandamus to sign a bill of exceptions, or show cause, &c.

GRAY v. THE STATE OF OHIO.

A negro is not an admissible witness against a quateroon.

Error to the court of common pleas, of Hamilton county. Polly Gray was indicted for robbery. On the trial, at November term, 1829, the prosecuting