They further contended, that the judges were bound to give such a construction to acts, as would comport with the intention of the law makers; and that this intention was to be collected, sometimes from the cause, or necessity of making the act, and sometimes from foreign circumstances. When this can be discovered, it ought to be followed with reason and discretion; although contrary to the letter of the act. Bac. 648. That they were also bound to construe statutes, according to equity. Ibid. 649. They compared this case to the statute of Elizabeth* in Eng and, which makes it felony to export sheep out of the kingdom. In this act, there is no exception as to a ship's live stock, proceeding on a voyage to foreign countries; yet the judges of Westminster-Hall, in the construction of this act, never considered the enacting clause as extending to masters of ships or vessels, carrying away sheep with them for that purpose. And commanders of ships, have uniformly carried out of the kingdom, sheep with them from the days of queen Elizabeth to the present day. It was said, that if the letter of the statute of Elizabeth had been attended to, and not the spirit and intention of it, it would have been felony. But the judges gave an equitable construction to it, by saying that the parliament only intended to prevent the exportation of sheep to foreign countries for sale; and not to deprive mariners on long voyages of the benefit of fresh provisions. So in the present case, the judges ought to give as equitable a construction to this clause of the act of 1787, by saying that it never was the intention of the legis lature of this state, to direct a forfeiture of negroes brought into the country under the sanction of a former act, before it was possible for the party to be apprized of the subsequent one. Such a construction would be consistent with the principles laid down in the authorities cited; while a contrary one would be rendering the law subservient to the purposes of palpable injustice and oppression. The policy 1789. Ham V. M'Claws and wife. 1789. Ham V. M'Claws and wife. or necessity of passing this law, was doubtless a wise one, as it was intended to prevent the importation of slaves for sale: but foreign circumstances loudly called for an excep tion in favour of the claimants, who could not possibly be supposed to be guilty of any wilful breach of the law in question; and appealing to the justice of the court, under those circumstances, it was urged, their good sense and discretion ought certainly to induce them to give a construction favourable to their claim. The Court. It is clear, that statutes passed against the plain and obvious principles of common right, and common reason, are absolutely null and void, as far as they are calculated to operate against those principles. In the present instance, we have an act before us, which, were the strict letter of it applied to the case of the present claimants, would be evidently against common reason. But we would not do the legislature who passed this act, so much injustice, as to sit here and say that it was their intention to make a forfeiture of property brought in here as this was. We are, therefore, bound to give such a construction to this enacting clause of the act of 1788, as will be consistent with justice, and the dictates of natural reason, though contrary to the strict letter of the law; and this construction is, that the legislature never had it in their contemplation to make a forfeiture of the negroes in ques-` tion, and subject the parties to so heavy a penalty for bringing slaves into the state, under the circumstances and for the purposes, the claimants have proved. Present, GRIMKE, WATIES and DRAYTON, Judges. The Jury accordingly gave a verdict for the claimants. The Attorney-General, Desaussure, and Ford, for plaintiffs. Rutledge, Pringle, Holmes, and Bay, for claimants. M'CLURES against HAMMOND. SPECIAL action on the case against the defendant, as Feb. 27th, 1790. Carrying goods for hire, makes a man a common carrier under a common carrier. The defendant had been employed by the plaintiffs to bring round to Charleston, from Augusta, in Georgia, a quantity of tobacco, which had been shipped the custom; on board of his boat employed in that trade. On the pas a tar an who is swerable for any loss arising from the want of care, gence. sage from Savannah, the boatmen anchored near the outside of an island on the coast, called Pinckney's island, skill or diliwhere, owing to the want of a good anchor, and In conpaulin, she drifted on shore and filled with water. of it, more than one half of the cargo was damaged sequence or lost. On the trial it was proved for the plaintiff, that the tobacco was put on board the boat in good order; and that at Savannah, the defendant or his agents, were cautioned against going along the coast, without a heavier and better anchor, and a good tarpaulin to keep off the spray of the sea. That when the boat came to anchor off Pinckney's island, and the tide turned against her, it was found that the anchor was much too light to hold so heavy a boat. Shortly after she drifted on shore, and having no tarpaulin to cover her hatchway, she soon filled with water. further appeared in evidence, that if the boat had been provided with a proper anchor, she would have rode in safety till the tide turned; or, if she had had a proper pilot on board, the boat might have come within the islands, along the inner passage; where she would have been perfectly safe, with the anchor she had. It The defendant attempted to prove, that the boat was driven on shore by tempestuous weather, but on the cross examination of the witnesses, it appeared that the wind was no more than a fresh sea-breeze, and such as was common in these latitudes at that season of the year. The defendant's counsel, in this case, relied principally upon the circumstance of the boisterous weather, which 1790. McClures V. Hammond. they contended would excuse a common carrier. 1 Str. 128. That the boat was as well found as the boats in the same trade usually were. That she was manned with skilful boatmen, and every thing was done by the defendant which was incumbent on him to do for the preservation and safe carriage of the tobacco. For the plaintiffs, in reply, it was urged, that whoever carries goods for hire or for freight, is considered in law as a common carrier. (1 Bac. 243. Bull. N. P. 70.) As masters and owners of ships, lightermen, hoymen, boatmen, stage-coachmen, &c. Therefore, on account of the hire and freight they are chargeable for all faults arising from the want of skill, care or diligence, to the party injured. 3 Black. 103, 4. Nay, so strict is the law against common carriers, that if a ship, boat, or vessel be robbed at night, the master or owner shall be liable. 1 Bac. 245. It is a rule, says Blackstone, that every common carrier, engages by law, to be answerable for goods he carries, at all events. 3 Black. Com. 163, 4. Nothing shall excuse them, but 1st. the act of God, or 2d. enemies. Bull. N. P. 70, 1, 2. Lord Raym. 909-918. As to the latter, none were pretended here, and as to the former, it appeared from the evidence, that the breeze was not more than every man of common foresight could have guarded against; or, by having a proper pilot on board, the boat might have been conducted in safety without being exposed to the sea. Then there was certainly some want of skill in not conducting the boat through the proper channel, or a want of due care and diligence, in not providing the boat with a proper anchor and tarpaulin, either of which made a defendant liable. The Court, in charging the jury, said, that whoever carries goods for hire, makes himself a common carrier under the custom, and the law was very clear, that nothing should excuse a common carrier, but the act of God or enemies. The latter were not pretended. It depended upon the jury to determine from the evidence, whether this was an unavoidable accident, owing to tempestuous weather, or which could not by due skill, care or diligence, be guarded against? The jury found for the plaintiff, the supposed value of the tobacco lost, 1007. A new trial was afterwards moved for, before GRIMKE, WATIES and DRAYTON, Justices; when after solemn argument, it was refused, on the ground that here were matters of fact very proper for the consideration of the jury. That the verdict was by no means against evidence, as the weight of it was in favour of the plaintiffs; nor against law, for that was equally clear with the plaintiffs, unless the defendant had brought himself under one or other of the reasons, which will excuse a common carrier, of which the jurors were judges from the evidence. Therefore rule discharged. Pringle and Bay, for plaintiffs. Rutledge and Taylor, for defendant. 1790. M'Clures V. Hammond. HAMMOND against M'CLURES. SHORTLY after the preceding cause was determined, Hammond paid off the judgment, and brought this action against the defendants, for the freight of the tobacco. August 28, 1790 Where a common car rier pays da mages for the loss of goods by negligence or unskilful it is tanta For the plaintiff, it was urged, that as the defendants in their action against Hammond, had been satisfied for the management, damages the tobacco had sustained, it was tantamount to safe delivery; and there could be no question but what he would be entitled to his freight. It was a well known rule a a mount to safe delivery, and he is entitled to his freight. |