Peter Maher vs. The State, 1 Port. 265

By Mr. Justice Thornton : This case, being an indictment for an assault with intent to kill, comes before us upon a reference of the point under the statute, as novel and difficult — Whether the venire facias, by virtue of which, the grand jury, who found the bill, were summoned, was void for want of the seal of office of the clerk who issued it ?

A venire facias to summon jurors, as a common law writ, was always cither under the seal of the chief justice, or of the justices of the court of oyer and terminer, or at least of the clerk, when íssüed by him, from an order on the roll.,— The. mode of proceeding in the steps introductory to the trial of causes, both civil and criminal, has been materially alter_ ed, in all the states, from the course of the common law ; and perhaps in nothing more, than in relation to the manner of summoning grand and petit jurors.

In New-York, a venire facias is directed by statute to be issued, under the seal ©f ■ the Supreme Court of the state,, as will be seen in the case in 18 Johns. Rep. 212. We have a statute regulating the summoning of juries, in which the writ is required to be issued by the respective clerks of the courts, to the sheriff of their counties, in which, no mention is made of the authentication of the writ. It is conceded pn . all hands, that this, any more than any other process, would not be good at tbe common law,, unless under seal.

And it must also be conceded, that it has been the invariable practice, from the existence of our government in its territorial form, down to the present day, to issue this, as also other writs, both original and mesne, without any seal being appended to them. A seal is, to be, sure, a necessary appendage of every clerk’s office of a court of record, in contemplation of law : and our statute, though it makes no provision for the procurement of one, yet supposes its existence, when it allows “ for every necessary certificate, to which the seal of office is required, and for affixing said seal,”, fifty cents.

But in no case ofiprocess of any kind, is that seal ever affixed. It cannot be presumed for a moment, that this omission has occurred, either from ignorance of the fact, that the common law is here adopted, except far as it is altered by act of our own legislature ; nor from ignorance of the fact, that a seal is required to be- affixed to all process by that law. I apprehend that the usual omission, has grown out of a construction of our statutes upon the subject, wherein the clerk is directed to issue the writ, to test it in his own name, and to sign it.

In regard to the justness this construction of our statutory provisions on this head, lam frank to confess, that I am by no means forcibly impressed with it. The result of all the enactments is, that all the writs shall be issued by the clerk — shall bear test in his name, and be signed by him.

Now, as sealing was a common law requisite, I confess I can find no reason for supposing that to dispensed with, beeause of the necessary change in the style, from the name of the reigning King, to the state of Alabama or in the test, from “ ourself at Westminster,’.’ to the name The force of the objection, made by the, counsel, to the application of the rule of construction, “ expressio unius, est ex-clusio alterius” is fully felt.' It was very properly urged, that however the name and signature might do alone, to a writ, created by the statute, and directed to be authenticated in that-manner, yet it would not exclude the further requisite, of sealing, from the common law writs already in existence the additional requirement being not inconsistent with su.ch. sealing.

Notwithstanding this, the opposite construction has, hitherto prevailed, and been followed up by an undeviating ' course of practice, so far as I have known, without being judicially called in question; and we feel constrained to adopt it.. I yield, as applicable to this case, to the influence of the maxim, that “ communis error facit jus,” and in doing so, I feel sustained by the authority of Lord Holt, in Clay v. Sudgrane.

He there says, in reference to the recovery of seamen’s wages, in the court of admiralty — “ it is against the statute expressly, though now communis error facit jus.” I would not carry the application of this maxim to the extent there intimated by his lordship j for surely, it does not graduate with sound legal principle to hold, that any usage, or common error, no matter how long persevered in, can abrogate

an act of the legislature. However, I think that such long continued usage, may furnish abundant reasons for acquiescing in the construction of

an act of the legislature, though erroneou. . 5 especially when such construction appears to be coeval wit!1' the act itself, has progressed without deviation as here, for a quarter of a century,' and is not expressly in contradiction of the act. The judgment is affirmed. Aik. 1). ¡ ¡r;. 1 Salk. 32.