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very large portion of the offer; that it was not the custom for slaves to form legal marriages, and that this was the rule to which there was really no exception. Such proof would have established the custom included in the offer in the proposition of twenty-one parts out of thirty-five, and this would have varied at different periods according to the relative proportions of slave and free coloured; at the earliest period, proving the custom almost entirely from the legalized practice of the slave class.
It is certain that the institution of marriage is not only recognised by the laws of Maryland as existing with the free coloured race, but we know that, amongst slaves in the slave states, the ceremony is often performed, although not followed by the usual legal consequences. And in the census of Maryland, in 1850, under the head of marriages, married whites and free coloured are classed together, as well as the number of dwellings and families of the white and free coloured population.
BRYANT V. COMMONWEALTH INS. Co. Supreme Judicial Court of Massachusetts, 1828 (6 Pick. 131).
A custom was alleged that the master of a stranded vessel might proceed to sell the cargo even though there was no necessity to do
Putnam, J.: . . . But the plaintiffs relied much, at the trial, upon a usage to sell property on the beach in similar circumstances; and the jury have found that there was such a usage. We cannot think that such a usage was of any validity. We have seen that it was not uniform. Some cargoes have been carried to Norfolk and not sold on the beach. It could not have any lawful commencement or continuance, in any case where there was no necessity to make the sale. It was against common faith and honesty. Necessity only will authorize the sale. A usage to sell without necessity would be void. It would be of no more validity, than would be a usage for the master and people to turn pirates when the vessel should take the ground. So far as it could be proved, that property, situated in all respects as this was, had been disposed of for the benefit of all concerned, on the spot, so far, and no farther, it would be evidence tending to satisfy the jury that the sale was reasonable and necessary. So that it comes to the question, after all, whether or not the master was justified by the circumstances and the necessity of the case, to make the sale as he did. Upon that question we have all a strong opinion that it was not reasonable or necessary.
TREMBLE V. CROWELL, Supreme Court of Michigan, 1869 (17 Mich. 493).
Graves, J.: The defendants in error sued Tremble in the court below, in assumpsit, and sought to recover from him certain money which they alleged they had paid him for a quantity of fish he had sold to them, and which had proved to have been unsound and valueless. The declaration contained the common and money counts, and also a special count in which the defendants in error alleged in the usual manner that the plaintiff in error warranted the fish to be good, sound, and fit for the market.
The plaintiffs below, after giving evidence to show that they were wholesale fish dealers at Toledo, in the state of Ohio, and purchased of the defendant, who was a fisherman at Bay City, and paid therefor, about $1500 worth of fish, of which, on their arrival at Toledo, some sixty-eight half barrels were found to be spoiled and valueless, offered evidence to prove that there was a settled uniform usage, that under a contract for the sale of fish for cash, and where there was no express warranty if the fish or any portion of them proved to be unsound, the vendor should be liable to pay back to the purchaser the money paid for such unsound fish, and the evidence was admitted under objection.
Subsequently the circuit judge, in submitting the case to the jury, instructed them that if they should find such a settled uniform usage it was valid, and that, by virtue thereof, the plaintiffs would be entitled to recover the money paid for the unsound fish, unless the parties made a contract excluding, by its very terms, the operation of such usage; and to this direction the defendant below excepted.
These objections present the main questions in the case.
It will be observed that the usage relied on would, if established, place the dealers in fish in Bay City and vicinity, in a position very different from that held by persons in the same business in other parts of the state; and would tacitly annex to all contracts there made for the sale of fish, unless expressly excluded by the contract. itself, a stipulation which would tend, inevitably, to supersede all official as well as private inspection; and would prescribe a specific redress in case of the ale of "tainted" or "damaged" fish, entirely different from that marked out by the statute.
Would such a usage be a reasonable one if conclusively proved? It appears to me that it would not.
The legislature have thought proper to provide for a system of public inspection of various articles, and among them the article of fish; and have made numerous and precise regulations on that subject: 1 Comp. L., p. 386; also, 392 to 394.
They have provided for the election of inspectors; have required them to make inspection when desired so to do; have specified the manner in which it should be done; have provided that the fish inspected should be designated by the inspector as number "one," or "two," according to quality, and have required the inspectors to report annually to the secretary of state the quantity, quality, and kinds inspected during the year.
They have also provided that, if any person shall sell, within the state, or export, or cause to be exported therefrom, any tainted or otherwise damaged fish, unless with the intent that the same shall be used for some other purpose than as food, he shall forfeit $10 for every one hundred pounds of such fish; and that upon the trial the burden of proof shall be upon the vendor to show for what purpose such fish were sold or exported.
By another section they have declared that it shall not be obligatory upon any one to have fish inspected; but that all contracts for the sale of fish shall be deemed made with reference to those provisions of the statute regulating the quality, quantity, and other descriptions, unless the parties otherwise expressly agree: Comp. L., § 1236.
Although the statute is not imperative on the subject of inspection, the penal provision against the sale of "tainted" or damaged fish is so; and the whole act is plainly expressive of a legislative purpose to provide the system of regulations for the trade, which the legislature deemed the best. Whether the usage in question would directly and necessarily conflict with any of these statutory regulations need not be determined, since in my opinion the usage cannot be sustained if found to be inconsistent with the policy or spirit of the statute.
It appears to me to be a part of the policy of the law in question to encourage the practice of official inspection and discourage a contrary course, to regulate the traffic in fish in the manner most likely to insure fairness between dealers, and maintain everywhere the reputation of a most important branch of the commerce of the
As the supposed usage assumes that the article is purchased without the safegaurd of inspection, and that the buyer will be saved from loss on a purchase of uninspected fish by the right given him by the usage to recover of the vendor the price actually paid; the effect of the usage must be to cause dealers to dispense with inspection, and pave the way for those consequences which the law was designed to avert; and, at the same time, to defeat the desirable objects which the legislature intended to promote.
Without attempting to contrast the usage with specific provisions, I think there can be no doubt but that it would introduce a practice altogether at variance with the spirit and plain policy of the inspection laws; and that if it were accepted as binding, it would go far to render those laws nugatory, and to supersede inspection altogether by responsible public officers.
Entertaining this opinion, I think that the usage in question was and is invalid, and that it could furnish no basis for a recovery in this case.
This conclusion, if correct, makes it unnecessary to consider the other questions in the case.
I think the judgment of the court below should be reversed with costs. The other justices concurred.
BLACKSTONE, COMMENTARIES, III, 2, 15.
The more effectually to accomplish the redress of private injuries, courts of justice are instituted in every civilized society, in order to protect the weak from the insults of the stronger, by expounding and enforcing those laws, by which rights are defined and wrongs prohibited. This remedy is therefore principally to be sought by application to these courts of justice; that is, by civil suit or action. For which reason our chief employment in this book will be to consider the redress of private wrongs by suit or action in courts. But as there are certain injuries of such a nature that some of them furnish and others require a more speedy remedy than can be had in the ordinary forms of justice, there is allowed in those cases an extrajudicial or eccentrical kind of remedy; of which I shall first of all treat, before I consider the several remedies by suit: and, to that end, shall distribute the redress of private wrongs into three several species: first, that which is obtained by the mere act of the parties themselves; secondly, that which is effected by the mere act and operation of law; and, thirdly, that which arises from suit or action in courts, which consists in a conjunction of the other two, the act of the parties co-operating with the act of law.
And first of that redress of private injuries which is obtained by the mere act of the parties. This is of two sorts: first, that which arises from the act of the injured party only; and, secondly, that which arises from the joint act of all the parties together: both which I shall consider in their order.
Of the first sort, or that which arises from the sole act of the injured party, is
I. The defence of one's self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations, be forcibly attacked in his person or property it is lawful for him to repel force by force; and the breach