
    CHABOT & AL. vs. BLANC.
    East'n. District.
    Feb. 1818.
    Appeal from the court of the first district.
    Parol evidence cannot be received to shew that a grant to A. was made in lien of, and intended to annul, a grant to B.
    The petition stated that the plaintiffs are proprietors of certain lots, lying on Levee street. in the city of New-Orleans, which they hold as they were originally granted, with the same boundaries, and subject to the same limitations and restrictions of length and depth, front to the river or quay- that a certain space of ground, lying between their lots, the quay, levee or bank of the river, is a public common, and was thus assured to the original grantees, under whom they claim-that a part of this space was granted by the Baron de Carondelet, and under the pretext of this grant, several persons, attempted to improve and build upon it, but these works were abated as a public nuisance, by the corporation of this city, and proceedings were had thereon in the court of the first district, and a judgment rendered, by which the grantee, or those who claim under him, were quited, in the possession or enjoyment of the said ground or common, in consequence of no defence having been made by the mayor, &c. which judgment is complained of as doing great and manifest injury to the plaintiffs, by depriving them of their several and proper rights-that the defendant had, in consequence of said judgment, again commenced the inclo- sure of said ground, for the purpose of build- ing thereon, to the injury, damage and total destruction of their fair and equitable title and rights.
    On thispetition an injunction was granted, which was afterwards dissolved and the suit dismissed.
    The plaintiffsappealed, and the record came up without any statement of facts, or any re- cord of the evidence adduced below.
    A billof exceptions appeared on the record. It was taken to the opinion of the district court, in refusing parol evidence to be given by the by the plaintiffs' counsel to shew, that a grant to Louis Lioteau, was intended and understood at the time, to be in lieu of, and to operate an extinguishment of the grant to Francis Lioteau, under whom the premises are claimed by the defendant.
    Besides the error in the bill of exceptions, the plaintiffs alledged the following:
    The indistinctness, indeterminateness and insufficiency of the judgment as a final judgment of the cause.
    The erroneous legal inferences drawn from the facts, which the judgment itself takes for granted or proven.
    Workman, for the plaintiffs.
    With regard to the admissibility of parol testimony in this case, I refer the court to 1 Henning and Mumford, 420, 2 Willes, 108, Powell on contracts, 420, 1 Day, 139, 1 Johns. 22, 3 Johns. 520, 6 Term Rep. 388 and 398, 2 Evans' Pothier, n. 16, sec. 8, Phillips' law of evidence, from 410 to 443, and the authorities he there cites.
    The error of the district judge, in deciding this point of the cause, has probably arisen from the opinion stated in his judgment, that "none have a right to ask a rescission [of a grant] but those who are parties to it"-where- as, in truth, every person is authorized to oppose and ask the rescission of any deed whatever, by which his property or any other right is ceded, or in any wise disposed of, without his consent, or by valid, legal proceedings. The objections of the plaintiffs to the grant under which the defendant claims, and which they would endeavor to support by competent testimony, are these:
    1. That the said grant is of a thing which is not in commerce-to wit, of a piece of land which, conformably to the authentic plans of this city, and to uninterrupted usage, ought to be open and free for the use of the public.
    2. That the said grant was either not accepted, or, if accepted, was afterwards abandoned and relinquished by the original grantee.
    I am well aware of the doctrine of our civil code respecting parol testimony in the case of deeds. “No parol evidence is admissible against or beyond what is contained in the acts." But this rule, I contend, is applicable only to lawful acts, to deeds clothed with every character which the law requires. One of the indispensable requisites of such a deed is, that the thing which is the object of it be a lawful object of commerce. Without this requisite, it is no deed at all. It is, from the beginning, null and void. Pothier, in his treatise on obligations, speaking of testimonial proofs. 2 Newbern edition, 222, observes, that "the rejection of testemonial proof against or besides the contents of the instrument, applies only to those who were parties," &c.
    The principle that two persons shall not, by any colorable proceedings, affect the consequential rights of a third, may be confidently stated as an invariable rule of law. 2 Evans’ Pothier, 223.
    II. It is abundantly evident, from the first principles of jurisprudence, that a definitive judgment, in order to be valid in law, should be certain, complete, full and conclusive-such a judgment, in a word, as would support the plea, or peremptory exception, of res judicata, if a new suit were instituted for the same thing, or on the same, cause of action: otherwise, there would be no end to litigation. This doctrine requires no argument or authority in its support.
    The judgment, in the present case, is null upon this ground. It does not decide the point put in issue by the plaintiffs-to wit, that they have a right to the use or enjoyment of the land or space in front of their homes, as of a common or public property-and, while the judgment leaves this principal point, the only one of importance in the cause, undecided, it proceeds to determine a point which is not put in issue- a right which is not claimed. This error is founded on a mistake as to the nature of the plaintiff's demand. The judgment states-"in this case, the petitioners’ claim rests upon two ground-1. that hte words in the deed, face au fleuve, convey a title to all the intermediate grounds, from the front of their buildings to the river;"-on which it is decided, that "the words face au fleuve, are words of description merely, and convey no interest whatever.”
    The word interest here must, we contend, be construed according to the supposed claim or title to which it refers-namely, a title to all the intermediate ground, &c. a title to which, in fact, the petitioners have laid no claim in their petition. Were the court now to confirm this judgment, would they not thereby pre-judge a most important question, in which many of the riparian proprietors of this commonwealth are deeply interested? Would they not finally decide a point which had not been, and which, in this cause, could not, from the nature of the pleadings, have been argued before them?
    This judgment must be pronounced null, on Von, the authority of the following law: "The judgment or sentence that is given of or concerning a thing which is not demanded, is not valid." Part. 3, 22, 16. Among the instances of this rule is this, to wit-"as if the action be for the property of a thing, and judgment be pronounced for the possession.” And so, no doubt, the judgment would be null, if the supposed case were reversed-and so, of course, must the judgment in question be null, inasmuch as it decides on a right of property, which has not been demanded.
    Let us hear what Pothier says upon these points-that admirable jurisconsult, whose universally respected decisions are drawn from the sources of our own civil jurisprudence, as well as from the principles of immutable justice. "A judgment,” says this author, “is null when the object of the condemnation which it pronounces is uncertain. Sententia debet esse certa." 2 Pothier on obligations, n. 18. And farther-"a judgment is null, when it has pronounced upon what has not been demanded; or when it has condemned a party to more than what has been demanded from him; for the judge is appointed only to resolve upon the demands which are brought before him, and he cannot, consequently, render the judgment, except upon what is the object of the demand.” Ib. n. 24.
    From the peculiar constitution of our tribunals of the first distance, and the introduction of the mode of trial by jury in civil cases, we may with propriety refer, in such a case as the present, to the common law authorities. The finding of the court below may be considered, in some respects, as if it were the verdict of a jury-But a verdict must "comprehend the whole issue, if it does not, a judgment entered thereon will be erroneous,” Miller vs. Tret, Exchequer. 1 L. Raymond-A new trial was granted, the question never having been fully before the jury. Rex vs. Malden, 4 Burrows, 2135.
    A verdict was held bad, because it did not find the issue joined. Brown vs. Chare, 4 Mass. T. R. 436.
    The supreme court of the United States, decided, in the case of Patterson vs. the United States, 2 Wheaton, 225, that “the rule of law is precise upon this point. A. verdict is bad if it varies from the issue in a substantial matter, or if it find only a part of that which is in issue. The reason of the rule is obvious; it results from the nature and end of the pleading. Whether the jury find a general or a special verdict, it is their duty to decide the very point in issue; and although the court, in which the cause is tried, may give form to a general finding, so as to make it harmonize with the issue, yet if it appears to that court, or to the appellale court, that the finding is different from the issue, or is confined to a part only of the matter in issue, no judgment can be render&emdash; ed upon the verdict."
    These decisionsare all drawn from the prin- ciples of common sense, which I set out with establishing:&emdash;namely, that a judgment to be valid, must be certain, full, and decisive.
    If it shouldappear to this honorable court, that the nullity of this judgment has, in any de- gree, been occasioned by the indistinctness, or want of precision in the plaintiffs' petiton, then, I beg leave to suggest, that the cause may be remanded, with instructions to the dis- trict judge, to allow the plaintiffs to ameud their petition, on such conditions as this court may deem reasonable, such a proceeding would be perfectly conformable to the liberal provision in the 13th section of the act to organize this court, which enables them to give judgment according as the rights of the cause, and the matter in law shall appear. Such a proceeding is also authorized by the practice of the supreme court East'n District. Feb 1818 upreine court of the United States, when deciding on Admiralty causes;-in which the rules of procedure are as liberal as those of our own tribunals-being founded, indeed, upon the same excellent system of jurisprudence.
    In the case of the Brig Caroline vs. the United States. 7 Cranch. 500, the supreme court gave the following sentence:
    "This cause came on to be heard on the transcript of the record, and was argued by counsel; on consideration whereof, it is the opinion of the court, that the libel is too imperfectly drawn, to found a sentence of condemnation thereon. The sentence of the said circuit court is, therefore recorded, and the cause re- manded to the said circuit court, with directions to admit the libel to be amended." The libel in this case did not state any certain specific offence. It was altogether in the alternative; vague, uncertain, and informal. The same point was also decided by the same tribunal, in the cases of the Enterprize, the Purity, and the Ann. 7 Cranch 572, 1 Gullison 22.
    III. The want ofthe formality of a statement of facts, distinct from the opinion and judgment of the court below, precludes the appellants, according to the rules of this court, from urg- this court, from urging, with effect, the objection set forth in the last error. This circumstance will, no doubt, furnish an additional inducement to this court, to remand the cause, in order that it may be fully investigated and instructed; and again brought before them, if necessary, in such a manner as will enable them to decide it finally, on its substantial merits, and set the very important question on which it depends, at rest for ever.
    Mazureau, for the defendant.
    We have nothing to do with the authorities cited from Henning and Mumford, Willes, Powell, Day, Johnson, Evans, Phillips, &c. Every person whose property or rights have been affected by a deed to which he was not a party, has certainly the right of opposing the execution of it, by this old maxim, "id quod nostrum est, sine facto nostro ad alium transferri non potest; but I deny him the right of asking the rescission of the deed. The deed, though not binding upon him, is good between the parties, and may forever exist, without depriving him of his rights or property, unless he gives his consent to it&emdash;quod ab initio vitiosum este non potest tractu temporis convalescere. The judge was, therefore, very correct in that position.
    As to the first objection of the plaintiffs to East'n District our grant, I refer the court to the pleadings they will see there that nothing of the kind was at issue that the question of a public common was finally decided and settled in the negative by a solemn judgment of a court of the last resort, rendered between the parties in another suit, and which has acquired the force of res judicata.
    
    As to the second, I refer the court to the judgment of the district court, in which they will see that the only object of the oral testimony, which has been rejected, was to shew that “a grant made to Louis Lioteau was intended and so understood at the time to be in lieu and place, and to operate as an extinguishment of the grant made to Francois Lioteau.”
    Now, that these facts are incontrovertibly established, I will ask this court if the judge below could admit the evidence offered? Could he do it, when he saw the grant made to Francois in the hands of his representives? If the grant made to Louis had been made to be in lieu and place, and to operate as an extinguishment of the grant made to Francois, would not that grant, made to Francois, have been withdrawn and annihilated? Does not its existence at this time shew, most conclusively, the falsity of the story made by the plaintiffs?
    
      Could the judge below admit oral testimony, to prove the abandonment or extinguishment of a most solemn and authentic deed, a public grant, when our statute says, "neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making the said acts, or since." Civ. Code, 310, art. 242.
    "But," says the counsel for the plaintiffs, "this rule is applicable only to lawful acts, to deeds clothed with every character which the law requires. One of the indispensable requisites of such a deed is, that the thing which is the object of it be as lawful object of commerce." Admit this to be true-who told the plaintiffs' counsel that the grant is not clothed with every character which the law requires? How does he chew that it is not? Is there any such thing in the record? Is it even alledged in the plaintiff petition? No.
    Again, who told the plaintiffs' counsel that the land, which is the object of our solemn grant, is not a lawful object of commerce? Have not his clients shewn in their petition that a final judgment, rendered between mine and the public, has decided that this land is a private; and not a public property?
    
      What then becomes of the pretended rule of our code?
    But, this rule is applicable to all contracts, except those in which fraud is committed against third persons, no matter whether the thing contracted for be in commerce or not-for in both cases written testimony alone can be admitted. Nothing can he said to belong to a city or corporation, or destined for public use, unless there be a title from the sovereign. The law declares that those things, que son establecidos e ortogadas para pro communal de cada ciudad, o villa &c. are the only things that belong to the community. Part. 3, 28, 9.
    II. The judgment decides the only point at issue, between the parties. An absolute title to the premises was set up. If the plaintiffs claim- ed only the use of the property, as a common, why did they begin by asserting that their lots are lying, as they were originally granted to the former proprietors, front to the river or quay? Surely that situation could not give to the plain- tiffs any more rights than to all the other inhab- itants of the city. A common is given by the sovereign for the benefit of all, without any dif- ference-if, therefore, the property in question was a public common, it was altogether immaterial whether the plaintiffs' lots were situated front to the river or in the back part of the town.
    They complain that the attempt to build on the property was made to their great annoyance and injury: if they intended to claim only the use of it as a common, could they with any kind of propriety, use any such language? Did they not know that any man might, with the permission of the sovereign, do what the defendant did, and that nobody could complain of it? Partida, 3, 22, 3.
    If they intended to claim only the use of the property as a public common, would they have alledged that the judgment rendered against the mayor and aldermen, and quieting the defendant in his possession, had deprived them of their several and proper rights? No-they would have said that it had deprived them of the rights which they had in common with all the citizens.
    If they had claimed only the use, as they are now pleased to say, would they have added that the enclosing anew of the property, in consequence of said judgment, was the total destruction of their fair and equitable title and rights? Most undoubtedly not. They knew very well that nobody can say that he has any title or rights to a thing which has not ceased to be a public common, and that no title is necessary for a resident to make use, jointly with all the others, of a place really common.
    What are we then permitted reasonably to infer from all the expressions made use of by the plaintiffs? Why, that they thought that their situation was a title to the ground. No, will their counsel say, because they never cease to call it a public common. Very well-but did they not, at the same time, prove the contrary, by alledging, in their petition, that a judgment had been rendered against the mayor, aldermen and inhabitants of New-Orleans, quieting the defendant in his possession? If they themselves do thus disprove that fact, after having stated it, what do all their allegations amount to? To nothing but a very bold and false assertion of indefinite title and rights to a property which, from their own contradictory shewing, cannot be considered otherwise than a private property.
    We ask it with confidence, could the court below consider the action of the plaintiffs as tending merely to obtain only the use of the property as a public common? Is it not more than sufficiently demonstrated by their petition, that the question relative to a common, was decided; that there was nothing of the kind?
    The question was decided-and, I must be permitted to add, that the plaintiffs themselves, as well as all the other inhabitants of New-Orleans, were parties to the cause in which that decision had taken place. They could not af-terwards put it again at issue, either in their own and private names, or in the name of the public. Finally, they could have or claim no right to, or use of the premises, as a common The question was decided.
    They were parties to the cause-witness their petition.
    Was it necessary to make them parties to the suit, to sue them separate1y? No man of common sense can pretend it.
    The actto incorporate the city of New-Orleans, passed the 17th of February, 1803, sec. 1st, prescribes, that "all the free, white inhabitants thereof shall be a body corporate, by the name of `the mayor, aldermen and inhabit- ants of the city of New-Orleans;' and by that name they, and their successors, shall be known in law, be capable of suing and being sued, and of defending in all courts, and in all mat- ters whatsoever." It says, sec. 13th, that "the estates, whether real or personal, the rights, "the estates, whether real or personal, the rights, dues, claims or property whatsoever, which heretofore belonged to the city of New-Orleans, or was held for its use by the cabildo, &c. shall be vested in the said mayor, aldermen and inhabitants.”
    If, therefore, as the plaintiffs-themselves state it fully in their petition, the present defendant and appellee has sued the said mayor, aldermen and inhabitants, who had disturbed him in his possession, and caused his fences to he destroyed as a public nuisance, and under pretence that the premises were, what they call, a common or public property-it is evident that the present defendant has sued the only persons whom he could legally sue-the only persons who were exclusively vested by law with every kind of rights to property belonging to, or held for the use of the city of New-Orleans ; and the judgment obtained against them is binding against the plaintiffs as well as against all the citizens of New-Orleans. To pretend the contrary, would go to assert that, after having legally silenced, by a solemn judgment, the unfounded claims of a corporation, a party should be obliged to defend his just rights against all the members thereof. The law did certainly not intend any such thing-a doctrine of that kind would be monstrous-if, against the public themselves, I have obtained a sentence which declares that a property, claimed by them as public property or common, is my own, I cannot afterwards be called upon by an individual to put the same question at issue.
    From these observations it follows that the judge below was bound, by the petitioners' own shewing, to look upon the question as being at rest, could not view their claim otherwise than an assertion of private right to a private property, and was obliged to decide as he did. Could he, since it was shewn by them that the property was not a common, think of their claiming the use of the same as being a common, particularly when in their petition they do not say a word of that pretended right of use? The thing is too absurd: to obtain that use it would have been necessary to shew that the property was a common, and it could not be done. The contrary was decided, and finally settled between all legal parties.
    We may, therefore, safely say that, in this respect, there is no error whatever in the judgment of the district court.
    But, says the counsel for the plaintiffs and appellants, should it appear that the nullity of this judgment, has in any degree been occasioned by the indistinctness, or want of precision in the plaintiff's petition, the cause may be remanded.
    To this suggestion I answer, there is no nullity in the judgment. The plaintiffs, in their petition, prayed to be maintained in the enjoyment of their legal rights, and that the defendant leave unoccupied the said ground or common.
    What did they mean by their legal rights? As they produced no title, the court was bound to presume, that they founded them upon those expressions, sail, but not proven, to be in the original grants of their lots, face au fleuve, quay or bank of the river.
    The court, accordingly, decided that such words, are words of description only, and convey no interest whatever.
    To shew the correctness of such a decision, requires but little trouble and reflection.
    Let us recollect, that in the very same petition, in which the petitioners state that their lots lay as they were originally granted, face au fleuve, or quay, they alledge that there is a space of ground between their lots and the quay, levee or bank of the river, which they say, is a public common.
    Now if this be true, and they cannot contradict it, what becomes of the words face au fleuve ? Can those words convey to them any interest in, or to that common? No, admitting therefore that the words face an fleuve are inserted in the original grants, which, by the by, is not in evidence, they cannot be considered otherwise than as mere descriptive words: for it cannot be supposed, that the sovereign, by using them, intended to interdict to himself or to the city, the right of disposing of the intermediate ground as he pleased ; if such had been the intention of the sovereign, he would certainly, instead of those words, have used the words face a la commune, and even in that case, let me he permitted to doubt, that those words would have the effect of preventing the building on the premises ; for the thing would not have ceased to be common ; if, for example, a church, a market, or a public hospital had been erected thereon ; the rights or interest coming by such words face a la commune, would not have been affected, as the same would have continued to be of a public common nature.
    The court was therefore right in declaring that those words, in this case, convey no interest whatever upon that intermediate ground, which is said to be a common, and which is proven to be a private property, by the judgment against the mayor, aldermen and inhabitants..
    
      The court, in deciding that those words convey no interest whatever (to that pretended common, as it must necessarily be understood) in dissolving the injunction, at first granted against the defendant, and dismissing the petition with costs, did certainly decide upon the matter in dispute.
    No matter what the petitioners claimed or intended to claim, whether the property or the use of it; the court I repeat it, was obliged since they produced no title, to presume that they bottomed their claim on the words face au fleuve; which could not be inserted in the petition for nothing; the judgment pronounced that those words convey no interest whatever. The contestation is at rest. No man of sense and impartiality can pretend, that the maxim sententia debet esse certa, is violated. No body can say that the judge decided upon a thing that was not at issue. Every thing is embraced by those expressions; "convey no interest whatever." Every thing is decided by those words, "that the injunction be dissolved, and the petition dismissed."
    If the cause was remanded, how could the petition be amended? By striking off the allegations of the former suit between the defendant and the corporation? Very well, but the defendant would prove it, as well as the judgment that quieted him in his possession. By alledging and asserting clearly and precisely, the pretended right to use the property as a public common? Very well, but the defendant would, by producing his judgment, which is a bar against all the inhabitants of New-Orleans, as well as against the plaintiffs, shew that the property is not a public common.
    What then would be the result of the remanding of the cause? The parties would be exactly on the same footing as they are now. The only difference would be, that instead of having the most important point of fact, to wit, that the premises are a private and not a public property, alledged by the plaintiffs in their petition, the same would appear in evidence, by the record of the suit, and judgment, alluded to by them in their said petition. Could they destroy that judgment? No, it has acquired the force of res judicata, and cannot now be impeached by any man or by virtue of any law. Then, the same decision which has been already given, to wit, a decision against the plaintiffs must again be rendered. The only possible effect of such a proceeding would be to delay the cause, to deprive for several months, the defendant of the free use, possession, and disposal of his rightful property; and I beg leave to add, that such a proceeding, far from being conformable to the provision of the 13th section of the act to organize this court, would be directly in opposition to the letter, and true sense and spirit of said provision.
    I will admit, for the sake of argument only, that the judge below misunderstood the claim of the plaintiffs. What can this court do according to the said provision?
    It says “no judgment or decree shall be reversed for any defect or want of form, but the said supreme court shall proceed and give judgment, according as the rights of the cause, and matter of law, shall appear unto them, without regarding any imperfections or want of form in the process or course of proceeding whatsoever."
    This court is bound by law, to give judgment according as the rights of the cause and matter of law appear unto them. They must do it without regarding any imperfections in the pleadings-They cannot reverse the judgment appealed from, for any defect or want of form.
    I ask it with candour and full confidence, would it not be a direct violation of this law, to remand the cause ? Could it be done, without reversing the judgment ? Upon what ground would the cause be remanded? For what motive would the judgment be so reversed? Upon the ground and for the only motive that there is a defect in the judgment, in as much as the court below misunderstood the real claim of the plaintiffs, which claim was imperfectly set forth or established in their petition ? I say that this is precisely what the law does not allow this court to do.
    This court therefore will, I cannot doubt it one moment, give their final judgment on the merits of the cause.
    They will give it in favour of the appellee. They must give it so, on the very face of the plaintiffs’ petition.
    Let the court consider the claim in either points of view, as a claim to the property, or as a claim to the mere use of it, as a public common.
    As a claim to the property, no title is shewn in the record. As a claim to the mere use of the same as a public common, they themselves shew that the property, far from being a public common, has, in a suit before a competent tribunal, between the parties, between the defendant and the mayor, aldermen and inhabitants of the city of New-Orleans, (in which the plaintiffs are legally included) been finally adjudged, to be the sole and private property of the present appellee; and let us remark, that the plaintiffs in then petition, do not speak of any right of use, view, or passage, on the ground in question, founded on any particular or private title, or otherwise.
    Now, if the ground is not a public common, unless they shew a particular or private title of servitude on it, they cannot have any claim: do they shew that title? No, there is nothing of the kind in the record, they do not even alledge it.
    There is, there can be no difficulty in deciding this cause upon the record ; and if the district court has erred, this court must and will by their judgment, correct the error. But they cannot remand the cause, for the reason assigned by the plaintiffs. They might do it, perhaps, if they were by law confined to pronounce the confirmation, or reversal of the judgment. But the case is different; such judgment as may be deemed just, according as the rights of the cause, and the matter in law shall appear unto them, must be given, without regarding any imperfections or want of form in the process, or course of proceeding whatsoever.
    
      III. The want of a statement of fact, which by the rules of this court is fatal, is made a ground for remanding the cause, Let me remind the adverse party that, for that very want of a statement of facts, their appeal has been already dismissed once-and let me observe, that if it had not been for the bill of exceptions, (in lieu of which the latter part of the judgment of the court below stands) and for the pretended errors, which they have been permitted to assign and file, every thing would now and long ago, be at rest.
   Mathews, J.

delivered the opinion of the court. To have admitted the evidence which the plaintiffs offered, would, in our opinion, have been a violation of the rules of our statute, made for the protection of written covenants, and the security of those who hold property under them, against the uncertainty of testimonial proof. Civil Code 310, art. 242. lit is contended, on the part of the appellants, that this rule is applicable, only to lawful acts, and not to such as are null and void ab initio, on account of the object being hors de commerce, &c. This may be true, but cannot be applied to the present bill of exceptions, by which it appears that evidence was offered, not to prove that the grant to the appellee is void, because it purports to dispose of something, not grantable to their prejudice and injury, but that it is void because something else was granted to some other person, as a consideration for its nullity. To make this circumstance available, against the first grantee, it ought to be shewn that he assented to it, or covenanted to this effect: which would be to shew a contract differing from the written act, winch according to our code, cannot be done by parol evidence, and the judge was correct in rejecting it.

The errors assigned, as apparent on the face of the record, although numerous, may be reduced to two classes. Those relating to the departure of the judgment from the matter in issue between the parties, and those relating to erroneous conclusions in law, drawn by the judge from facts assumed by him, hut not appearing in evidence. As to those of the latter class, it is sufficient for us to observe, that this court cannot legally notice the facts in any cause, unless they appear by a statement, or the testimony, as given in the inferior court, which may lie sent up with the record. In the present case, the facts are not exhibited to us in either of these forms, and consequently any erroneous opinion of the inferior court, founded on facts not appearing in evidence, nor shewn as required by law, cannot be corrected: for de non existentibus & non apparentibus eadem est ratio.

In order to discover whether any error of the first class does really exist, as stated by the counsel of the plaintiffs and appellants, it is necessary to examine minutely the declarations and complaints in the petition. The answer amounts to a general denial of all the allegations of the plaintiffs, tending to prevent the defendant’s enjoyment of the premises. From these allegations, it is believed to be altogether impossible to ascertain what right the plaintiff's claim, or what injury to their property they complain of, as originating in the conduct of the defendant.

They state the lot of ground, on which are the works commenced by the defendants complained of as an injury to their several and proper rights, to a public common.

Considered simply as a public common, without taking into view the relative situation of the property of the plaintiffs, they have no more right or interest in it than any other citizen of the town : and by their own shewing, in the petition, it has been already adjudged by a competent tribunal that it is not a public common- a judgment having been obtained to quiet the defendant in the possession of it as his private property. It is true that they claim several and proper rights; but in no place do they say what those rights are-how they originated-whether they be of property in the thing, or that it should not be granted or appropriated to the separate and unlimited use of any individual, because such a grant or appropriation deteriorates and lessens the value of their houses and lots adjacent thereto, in violation of the good faith, which ought to have been observed to the original grantee; in other words, that it is not grantable as against them, and that the grant is null and void, on account of fraud or mistake ; the grantor having made it contrary to sonic obligation, either express or implied, arising out of the original cession of the lots, held by the plaintiffs and appellants, according to an authentic and established plan of the city.

After having declared the ground, or open space between their lots and the river, to be a public common-after having complained that the judgment obtained by the defendant against the corporation of the city, as set forth in the petition, has deprived them of their several and proper rights, without, in any distinct manner, specifying and designating those rights, the plaintiffs finally alledge that “ the defendant still persists in making preparations to build on the ground in dispute, notwithstanding their interdiction, to the total destruction of their fair and equitable title and rights ?” What title? What rights? Title and rights to the disputed property? No-for they have before told us, that it is a public common. Being a common, they cannot legally claim any private right of property in it-and, considered merely as commoners, their rights have already been decided on, by a competent tribunal.

The circumstance of the district court having decided that the plaintiffs and appellants have no title to the lot occupied by the appellee, is, perhaps, more than ought to have been done : as it dues not clearly appear that their right of private property is put in issue, by the pleadings in the case. But this ought not to vitiate the judgment, if it be correct in other respects, It is a judgment, by which the plaintiffs’ petition is dismissed-and, in the opinion of this court, properly so, as being so vague and uncertain that no final judgment or decree can be made thereon on the merits of the case.

It is, therefore, ordered, adjudged and decreed, that the judgment of the district court be affirmed, with costs.  