GUES V. COXE. in any judicial decision. [C. J. TILGHMAN. My mind at the 1809. trial rested simply on the abstract point, whether, supposing GARRIthe captain not to have been in fault, this was such an injury as the underwriters must answer for.] There was not a shadow of evidence that the captain was in fault. Then as to Rohl v. Parr: It turned upon an understanding among the merchants of London, that the eating by worms upon the voyage insured, was not within the policy. The whole was left as a fact to the jury. If it decided a principle of law, we deny its authority; it is in direct opposition to the opinion of Emerigon, and the case of the King Solomon, referred to by him. 1 Emer. 587. Levy in reply. Unseaworthiness is such a state of the vessel, as, without reference to the possibility or impossibility of avoiding it, renders her unfit for her destined voyage. When is it material to the contract that the warranty should be true? Not when the vessel is in harbour. She may be receiving repairs. The policy nevertheless covers her, if it be "at and "from;" and of course the warranty cannot then attach, for she has nothing like seaworthiness about her. There is no getting away from the case of Forbes v. Wilson. It was an insurance upon a ship "at and from" Liverpool, which at the time the policy was made, was not in a condition to go to sea, but was undergoing material repairs. Lord Kenyon held that under the words" at and from" it was sufficient if the ship was seaworthy at the time of sailing, for from the nature of the thing the ship while at the place, probably must be undergoing some repair. If it is sufficient then, so it is material. The warranty cannot bind as to the assured at one time, and as to the insurer at another. The inconveniences of the principle are nothing; but they would be all the greater, if the warranty attached with the risk. A vessel may arrive at a foreign port, with a leak that cannot be stopped in twenty-four hours. The policy is void. She may be struck with lightning the day she arrives; it takes a week to repair her, and she then sails seaworthy, and is lost: there can be no recovery. And so in many others. There has been no proof however, that the brig was sound at the commencement of the risk; and the plaintiff should have been held to strict and cogent proof, after such a loss. Marsh. 367. It did not appear in what condition she landed her outward cargo. From the depositions, it was probable the rats were in her at 1809. GARRI GUES V. COXE. that time, and had given her a death blow. Upon such evidence the jury had no right to presume seaworthiness; and as there are other causes upon this policy, we should be sent back to investigate this matter further. As to the memorandum: the timbers were reported to be unsound and rotten; they would not hold the nails, and she was condemned for this cause. We therefore do bring ourselves within the words of the clause. The cause of the defect is of no consequence; the parties have not said that it is; and as in the common case of a warranty, it is therefore immaterial. Rotten and unsound however, mean different things; they embrace all causes. I do not agree the case of Watson v. Ins. Co. Nor. Am., that if by the survey and condemnation she is brought expressly within the memorandum, the assignment of additional causes will take her out. Upon the last point it has been conceded, that the insurers are not answerable for the neglect of the master. The case of Dale v. Hall is express that the gnawing of rats is ordinary negligence; no matter between what parties, or upon what contract. It is held not to be inevitable accident, and that is enough. The opinion of the court was delivered by TILGHMAN C. J. In this cause, as in many others, we feel the loss of our brother Smith. As the cause was tried before me, it was not my intention to give any opinion, but in case of necessity. It has now become necessary. I shall only say, however, on the points of law, that I have found no reason to alter the opinion delivered on the trial; and in that opinion judge Brackenridge concurs with me. The law being settled, the merits of the case rest on the facts, whether the vessel was in proper condition at the time the injury from the rats took place, and whether this injury took place before or after the commencement of the risk insured against, and without the neglect of the captain. To these points the parties gave very little evidence on the trial, nor did their attention seem to have been turned towards them. All the proof made by the plaintiff was that the vessel performed her outward voyage in good time; but as to her condition, or the condition of her cargo, there was no evidence. It appears that there are several more actions depending on the same policy; and now that it is understood, on what points the cause turns, it may be expected that the merits will be more fully investigated. The court are of opinion that it will be most conducive to justice to hold the present case under advisement, till a trial is had in one of the other actions. If the jury find again for the plaintiff, there will be no reason for a new trial in this case; but if a verdict shall be given for the defendant, it will be proper to grant a new trial, unless the parties themselves agree on some other arrangement. YEATES J. took no part in the cause, being related to one of the parties; but he said at the conclusion of the court's opinion, that he was perfectly satisfied with it. 1809. GARRI GUES V. COXE. Cur. adv. vult. THE Commonwealth against DUANE. Tuesday, April 4th. after the passing of person shall HE defendant was indicted for a libel of the late gover- An act of assembly dinor M'Kean in his official capacity; and at a nisi prius rects that holden by Yeates J. in December last, was convicted upon from and one count. His counsel then moved in arrest of judgment, because although the indictment charged the libel to be malicious, the act no scandalous, and seditious, it did not charge it to be false, be subject to which they held to be necessary under the constitution of this prosecution by indictstate. The motion was argued with great ability at December ment," for a term; and a second argument was directed at this term, it particular offence at com. being understood that the court was divided in opinion; but mon law. upon calling up the case, it was suggested that an act of as- Held, that it sembly, recently passed, had put an end to the prosecution; to a prosecu and the court ordered an argument upon this previous point, offence, before they should hear any further discussion of the merits. commenced The act in question is entitled, An act concerning libels, to conviction and was passed the 16th March 1809. It contains but two sec- before the tions, as follows. passing of the act, but puts an end tion for that and carried Sect. 1. Be it enacted, &c. That from and after the passing in which no of this act, no person shall be subject to prosecution BY INDICT- judgment has been MENT in any of the courts of this commonwealth, for the pub-pronounced. lication of papers examining the proceedings of the legislature or any branch of government, or for investigating the official conduct of officers or men in a public capacity. 1809. v. .DUANE. Sect. 2. That in all actions or criminal prosecutions of a liCOMMON- bel, the defendant may plead the truth thereof in justification, WEALTH or give the same in evidence; and if any prosecution by indictment, or any action, be instituted against any person or persons contrary to the true intent and meaning of this act, the defendant or defendants in such action or indictment may plead this act in bar, or give the same in evidence on the plea of not guilty. Provided that this act shall be and continue in force for the term of three years, and from thence to the end of the next session of the legislature. Rush for the defendant. The object of the act in question is to take away a crime which previously existed, and therefore that interpretation is to be adopted which favours the suffering party. We contend that it is retrospective, that it terminates all prosecutions heretofore commenced for libels upon the official conduct of men in a public capacity. At the same time it interferes with no private vested right. The government alone is interested in the prosecution of criminal suits; it can terminate them at any stage by a nolle prosequi; it can obliterate the prosecuted offence from the penal code; and provided it leaves to the citizen his civil remedy for the injury that is peculiar to himself, it violates no right of property, and it offends no principle of justice. The question is, what was the intention of the legislature. The defendant is under a prosecution by indictment for a libel of governor M'Kean in his official capacity; and the first section of the law says, that from and after the passing of the act, no person shall be subject to prosecution by indictment for such an offence. Prosecution has two meanings. The one is confined and technical, and signifies the form or mode of suit, as prosecution by indictment, by appeal, by information; instances of it may be found in 4 Bl. Comm. 289, 301, 312, 317, 335. The other is an enlarged general meaning, indicating the whole train or series of proceedings from the commencement of the suit, to the final judgment or sentence. 4 Bl. Comm. 320, 1, 2. 337, 362. It is in this sense we speak of a particular stage of the prosecution, or of being discharged for want of prosecution; and so it is emphatically used by Blackstone, with particular application to this case, when in the beginning of one of his chapters, he says: "We are now to consider the next stage of criminal prosecution, "after trial and conviction are past, which is that of judgment." 1809. COMMON υ. 4 Bl. Comm. 375. Judgment therefore is a stage of the prosecution; it is one which we have not reached; it is future to us; and giving "shall" its strongest effect against us, we must still WEALTH be embraced and protected by it. The words of this section are as complete an arrest of judgment as if the law had said no DUANE. person shall hereafter be subject to judgment upon an indictment for the publication in question. But there is another ground upon which judgment must be arrested. The law has actually repealed the offence of publishing libels upon the official conduct of men in a public capacity. There is no longer such a crime in our penal code. Now nothing is more certain than that if a statute creating an offence be repealed, all proceedings under it fall. 1 H. H. P. C. 238, 291. 1 Hawk. P. C. b. 1. c. 40. sec. 10. United States v. Passmore. (a) The repeal does not merely prevent new prosecutions; it cuts up existing prosecutions by the roots; no one can be punished under the statute, unless it contains a saving clause. Miller's case, (b) 4 U. S. Laws 204. What is the ground of this principle? Simply that the offence is gone; and no one can be punished for what is not a crime at the time of punishment. It must be the same if an offence at common law is repealed; its being by statute is of no consequence. It is the repeal of the offence that is material. If the first section puts an end to the prosecution, nothing in the second section should sustain it; for the whole act must stand. An argument may perhaps be drawn from the word "instituted" as synonymous with commenced; but no such meaning is assigned to it in any dictionary of reputation. It is defined by Johnson, to fix, to establish, to settle; and even if it does signify to commence, it is not used in such a tense as to mean prosecutions begun afterwards rather than before. As to constitutional objections, they can hardly be expected. The constitution no where says that such prosecutions shall not be abolished. It merely provides for the security of the citizen, by allowing him to give the truth in evidence so long as such prosecutions shall be lawful. Levy and Ingersoll for the commonwealth. Constitutional objections to a statute, are of a nature too embarrassing to be (b) 1W. Black. 451. (a) 4 Dall. 373. |