It is not easy to ascertain the truth of the case made by this certiorari, from a very illegible bill of exceptions, and a transcript of record about as confusedly put together as a clerk could well arrange it, and deficient in dates of orders and answers to the writ of certiorari. As it is the duty of the plaintiff in error to make that error manifest to this court, if we have failed to decipher the questions made, he must be the loser.
1. The issue seems to be who rented this land to the tenant, and was entitled to the rent, A. J. McBride, who *300distrained for that rent, or B. F. McBride, who also claimed to be the landlord,'and was set-up as such by the tenant. The evidence is in parol, there being no written contract of rent, and is contradictory. The justice of the peace found in favor of A. J. McBride; the jury in the justice court found the same way, and the judge of the superior court has repeated for the third time this same conclusion. Surely on this issue of fact, this persistent litigant ought to be satisfied; if he is not, we must compel his acquiescense by a fourth decision to the same effect, ours being that ratification of the three first which the law requires this court to make.
2. In respect to certain errors of law complained of, touching the refusal to continue and to force the production of the deed, the answer of the justice of the peace to the petition that sets up these errors, and the facts authorizing their being made, do not lay before the superior court any facts on which those errors alleged can rest. The justice remembered something about some deed, but cannot recall it, some two or three years after trial in his court, when he was commanded to perfect his answer; and about the continuance he answered that, as he then recollected, the tenant answered ready, and after some adverse ruling wished to change the announcement and continue. On such facts there was no error in going on with the trial, and none not to have a deed produced that he did not remember what it contained, or would show about the grantor or grantee, or land or aught else. The superior court is governed by the answer of the justice, not the petition of a party, and committed no error in not sustaining such points on such facts.
3. In respect to the levy being made by a constable, who signed his name by using a cross-mark, the justice says, in substance, that he was in court, returned the levy there as his, and recognized his mark; and thinking the objection to the levy a mere effort to delay, he overruled objection to it. Certainly this was not ground to reverse the justice and sustain the certiorari.
*3014. So far as refusal to send the answer back for further perfecting, the court was certainly right (if the point was made before it, which is not certain from the bill of exceptions), because the justice in his last return answered that he had sent up everything, and stated every fact he could remember at the date of the .last answer.
It is rather doubtful whether a case brought to this court so confusedly as this is, and containing such evidence of delay in a spirit of litigation as to which of two men the tenant should pay rent, ought not to have the cracker -of' ten per cent, for delay tied to its tail; but as it might have been thought there was something in the point that the plaintiff distrained as an individual, though there was evidence that he was still administrator of his father, who once owned the land, it appears dimly, and that the purpose of continued delay might admit of doubt, we forbear to direct damages. It is very rare, however, that an honest man, who owes rent and is tenant to somebody, should be so particular about not only the landlord, but the character in which that landlord sued. We cannot see how he would be hurt if he paid by a judgment of court.
Judgment affirmed.