1808. GIBSON bond; for the referees determined that there was no proof of any extraneous facts to alter the bond, and nothing has been shewn to us which could induce us to say that they were wrong Philadel. in that determination. Then what says the bond? That the Ins. Co. lender shall be liable to average in the same manner to all in v. tents and purposes as underwriters on a policy of insurance, according to the usages and practices of the city of Philadelphia. What is the law, usage, and practice, in case of a loss of this kind? The plaintiff has laid before us the calculation of a loss on a valued policy by a very intelligent broker, Mr. Clement Biddle; but there is no occasion to examine the correctness of it, because there is nothing in the bond which authorizes us to consider this as a valued policy. All policies are considered as open unless the contrary is expressed. Then taking it as an open policy, the average is to be calculated on the cost and charges of the goods and the premium of insurance. There is no ground for taking into consideration the marine interest which the plaintiffs paid for the loan; as well might the assured, in common cases of insurance, charge the underwriters with usurious interest paid by him for the money with which he purchased the goods. This interest is not the cost of the goods, but the cost of the money with which the insurer has nothing to do. The case then is narrowed to this point, whether the plaintiff had a right to include the freight, as part of the cost and charges of the cargo. Freight in its nature seems distinct from those costs and charges. It is the price paid for carriage of the goods; and in case of a total loss, it is not payable at all. This is not a new point. It received an express decision in Baillie v. Moudigliani, (Parke 53. 25 Geo. 3.) where it was the unanimous opinion of the court, that in an insurance on goods the underwriters are not liable for freight paid by the owner of the goods, because they have not engaged to indemnify the insured against it. That case is not an authority here; but it is entitled to that consideration which we pay to the respectable courts of all nations, when they found their decisions not on municipal regulations, but on the general principles of maritime law. It appears to me therefore that the referees were right in excluding the freight. My opinion on the whole is that the exceptions are not good, and that the award be confirmed. SMITH J. My opinion is that the report be confirmed, because I cannot discover in it any clear mistake either in fact or in law. Award confirmed. 1808. GIBSON V. Philadel. DUBOSQ against The Guardians of the Poor. THE ment of a firmed in the common HE record of a judgment against Dubosq, at the suit of If the judgthe defendants in error, was brought by certiorari from justice of the before an alderman, to the common pleas of Philadelphia coun- peace is afty; and no exceptions being filed in writing on or before the first argument day after the return, the judgment was affirmed pleas, for of course, agreeably to a rule of that court. It was then brought ceptions in by writ of error to this court, and errors assigned. want of ex time, agreeably to the rules of that S. Levy, for the plaintiff in error, was now proceeding to court, this the errors, when open Phillips produced the rule of the common pleas, and asked whether the court would hear an argument. Per CURIAM. The court of common pleas has been much harassed by certioraris to justices of the peace, and it has a perfect right, for the despatch of business, to make such a rule, and to enforce it. After the judgment has been affirmed in consequence of the party's neglect, we will not suffer him to disturb it here. Judgment affirmed. court will not hear ob jections to it. 1808. Saturday, This court ty to decide upon the EMERICK against HARRIS. HIS was a certiorari to the alderman's court of Philadel THIS has authori- phia. The record shewed an action of debt by Emerick against Harris, in which the defendant had suffered judgment constitutionto go by default for 117. 6s. Od. and the costs; and the only obality of an act of the jection to the proceeding was, that the alderman's court had no state legisla-jurisdiction in causes above 107. ture. The 201. act is not un al. Before the adoption of the present constitution of Pennsylvaconstitution- nia in 1790, justices of the peace, by an act passed the 5th April 1785, 2 St. Laws, 304. had jurisdiction in cases of debt or demand not exceeding 10.; but by a law passed the 19th April 1794, 3 St. Laws, 736. that jurisdiction was increased, in cases of the same kind, to an amount not exceeding 201. This law directed, that if any person should bring suit in other manner than was provided by the act, and should not recover more than 20%. he should not have judgment for any costs; at the same time it provided, that either plaintiff or defendant in a suit brought before a justice for a demand above 10%. might before judgment elect to have the cause tried in the common pleas, the defendant, if he was the party electing, giving security in the nature of special bail, or to enter a common appearance, accordingly as the cause originated by capias or summons; and it entitled either party, even after judgment, if the amount exceeded 51. to appeal to the common pleas, upon giving security to answer costs, to prosecute the appeal with effect, &c. The same jurisdiction, thus modified, was given to the alderman's court, which proceeded without the intervention of a jury. The case turned upon the validity of this law, which was alleged to be unconstitutional and void, because it violated the 6th section of the 9th article of the constitution, which says "that trial by jury shall be as heretofore, and the right there"of remain inviolate." It was argued at September and December terms 1803, by McKean (attorney general), Ingersoll, and E. Tilghman, for the defendant, and by Hopkinson and Rawle, for the plaintiff. The arguments for the plaintiff, were in substance, 1. That 1808. this court had no authority to declare an act of the legislature to EMERICK be unconstitutional. That such a power was not expressly given υ. to the judiciary by the constitution; and without it, being at HARRIS. most but a coordinate branch of the government, they could not defeat or control the legislature, by vacating laws, of the constitutionality of which the one had no better right to judge than the other. That in fact neither had the right; the people being the safeguard of the constitution, and holding in their hands the remedy for all injuries to that compact, in the power of dismissing bad servants. That if the court took the power by implication from either their oath of office, or the nature of their duties, so might the common pleas, the alderman's court, justices of the peace, and even many executive officers, until at last there would be no person too illiterate or too humble to correct the legislature of the state, and to arrest the exe. cution of the laws. 2. That the law of 19th April 1794 was not contrary to the constitution. That the legislature had an express right by that instrument, to organize new judicial tribunals; and that so long as the trial by jury was preserved through an appeal, the preliminary modes of obtaining it might be varied at their will and pleasure. That to deny them this right, was to prohibit the minutest change in any of the formal process and rules by which jury trial was obtained and regulated. That by this law the trial was open to the parties at their own election, or by appeal; and it rested with them, whether to remain before the magistrate, or to proceed in the old way. That the only difficulty was about the costs; and that therefore the question of constitutionality came to this, whether the legislature had a right to abridge, or to abolish costs, in cases wherein they were recoverable before the constitution was adopted. That this was almost too plain for argument, and was a matter upon which a multitude of laws had been made since that time, without a suggestion of their impropriety. That it was always a question of policy for the government, and not of right in the party; some parties paying none, others paying double or treble costs according to the nature of the case; a proportion sometimes existing between them and the damages recovered, sometimes not; the whole being an arbitrary system, of the change of which, or even its extinction, no one had a right to complain. 1808. V. For the defendant the arguments were, 1. That the constituEMERICK tion was the paramount law of the land; and that all acts of the legislature which impugned its provisions, were not merely HARRIS. voidable, but absolutely void; they were not laws at all, as they wanted the vital efficacy of a law. That if an act, deriving its authority from a supposed law, should come before the court, there could be no doubt of the court's power to defeat the act, if the law was found not to exist; which was precisely the case where an act was founded upon a law repugnant to the constitution. That the question was between conflicting laws, one of which must always stand, and the other give way; and the whole point was, whether the court, who could execute but one of the laws, had a right to decide whether there was a conflict, and which should give way. That it was too plain for debate, that when there is a paramount law by which the court is at all events bound, it must have a right to say whether a law, which has no authority upon them except it conform to the paramount law, does or does not conform to it. That the judiciary owe a duty to the constitution above that which they owe to the legislature; and where the one says one thing and the other a contrary thing, they must adhere to the first, which in effect is deciding against the second. That finally the right of the court had been repeatedly affirmed by judicial decisions; as in Vanhorne v. Dorrance (a), Hayburn's case (b), Hylton v. The United States (c), and many others in our own state. 2. That the constitution, by directing that trial by jury should be as heretofore, and the right thereof remain inviolate, had interdicted the legislature from abolishing or abridging this right in any case, in which it had existed before the constitution. That a prohibition to do this directly, was a prohibition to do it indirectly, either by deferring the decision of a jury until one, two, or more previous stages of the cause had been passed, or by clogging the resort to that tribunal by penalties of any kind, either forfeiture of costs, security upon appeal, or delay. That the power to obstruct at all, implied a power to increase the obstructions, until the object became unattainable; and that the instant the enjoyment of the right was to be purchased by sacrifices unknown before the constitution, the right was violated, and ceased to exist as before. That the question was not whe (a) 2 Dall. 304. (b) 2 Dall. 409. (c) 3 Dall. 175. |