Maybin and Roselius, for the appellants.

Durant, contra.

By Court, MORPHY, J. The petitioners, a commercial firm, located in the town of Bayou Sara, in the parish of West Feliciana, seek to recover five hundred and fifty-one dollars and seven cents, which they allege to be the loss they have sustained on a lot of merchandise, insured against fire by the defendants, on the application of Morton Hoffman, their agent in New Orleans, and which was injured by fire during the term of the policy, in a store in Tchoupitoulas street. They aver that the value of the goods, before the fire, was nine hundred and seventy-one dollars and twenty-five cents; that, after being damaged, they were sold at auction by the order, and with the consent of the underwriters, and produced four hundred and twenty dollars and eighteen cents, thus making their loss amount to the sum claimed. The defendants admit the execution of the policy, but deny that the goods were sold by their order, or with their consent, or that the petitioners have complied with the conditions imposed upon them expressly by the policy or by law. They further say, that the fire was caused by the design, or by the negligence, or fault of Morton Hoffman, the person named in the policy, and who effected the insurance; or by the design, or negligence, or fault of some one in the employ of Hoffman, with the view, on the part of said Hoffman, or said other person, to defraud the company, and for whose acts the petitioners are responsible. They further charge that, with the same fraudulent view, Hoffman claimed of them a loss exceeding the amount now sued for, in consequence of all which the policy has been forfeited; that the said Hoffman is the real plaintiff in this case, or that the petitioners are responsible for all his acts, etc. The case was tried before a jury, who gave their verdict in favor of the plaintiffs. From the judgment entered up thereon the defendants have appealed, after vainly attempting to obtain a new trial.

Our attention has been drawn to several bills of exception spread upon the record. The first is to the opinion of the judge below, refusing to hear testimony offered to show that the store occupied by Morton Hoffman was set on fire by him with the intention to defraud the defendants, or was occasioned by his negligence or other fault. We do not think that the judge erred. If the fire happened in consequence of any negligence. or fault on the part of the plaintiff's agent, the testimony to

AM. DEO. VOL. XLIII-12

prove it was irrelevant, as it is now well settled, both in England and the United States, that the underwriters are answerable for a loss occasioned by the negligence of persons in charge of the property insured; and such is the law both in fire and marine policies. It rests upon the familiar principle that causa proxima, non remota, spectatur; fire being considered as the proximate cause of the loss, though the remote cause of it may be traced to some carelessness, or negligence of the assured, or his agents, or servants; but such carelessness or negligence must be anaffected by any fraud, or design on the part of the assured. Fraudulent losses are necessarily excepted, no man being permitted in a court of justice to avail himself of his own turpitude as a ground of recovery in a suit: 1 Ph. Ins. 632; Patapsco Insurance Co. v. Coulter, 3 Pet. 222; Columbia Insurance Co. v. Lawrence, 10 Id. 517; Waters v. The Merchants' Louisville Insurance Co., 11 Id. 218.

In relation to the testimony offered to prove that Hoffman designedly set his store on fire to defraud the defendants, the judge thought, and we think correctly, that it should be excluded, as the plaintiffs were not in the least degree implicated in the charge. Hoffman, it appears, had two policies underwritten by the defendants, the one now sued on, which expressly purports on its face to be for the account of the plaintiffs, although made out in his name; and the other for his own account on goods in the same store. If, to accomplish his own fraudulent purposes, Hoffman committed the act he is charged with, are the plaintiffs to suffer for it, when it is not even intimated that they were in any manner cognizant of, or privy to the deed? Should this wicked and unauthorized conduct on the part of their agent affect them any more than if it had been that of a stranger? It is true the principal is liable to third persons in a civil suit, for the frauds, deceits, misrepresentations, etc., of his agent, in the course of his employment, although the principal did not authorize, or justify, or participate in such misconduct, nor even know of it; but the just and necessary limitation of this general rule is, that such frauds, deceits, misrepresentations, etc., must occur in the course of the agency; and he is not responsible for the agent's willful, malicious, and unauthorized acts in matters beyond the agency: Story on Agency, secs. 452, 456. If, for instance, in effecting the insurance the agent makes a false representation or concealment, such false representation or concealment will be considered as that of his principal, and will have the same effect on the policy as if made by the principal, it be

ing au act within the scope of the agency, and in doing which he represents the principal; but in the present case, the act charged to Hoffman and offered to be proved, can not be considered as done in the execution of the authority given him, when it is not pretended that the plaintiffs were participants in the fraud: McManus v. Crickett, 1 East, 106; Foster et al. v. The Essex Bank, 17 Mass. 608 [9 Am. Dec. 168]; Ware v. The Barrataria and Lafourche Canal Company, 15 La. 170 [35 Am. Dec. 189]; Gaillardet v. Demaries, 18 Id. 490.

The next bill of exceptions is taken to the opinion of the judge, rejecting as evidence the record of a suit in the commercial court between Morton Hoffman and the defendants, which is stated to have been offered by the latter, to prove fraud and false swearing on the part of Hoffman, and for the purpose of enabling them to show what portion of the property belonged to the plaintiffs, and what portion belonged to Hoffman individually. The judge's opinion appears to us correct. It does not appear from the bill of exceptions, nor is it pretended by the defendant's counsel, that the fraud and false swearing sought to be shown, took place in relation to the plaintiffs' claim and under their policy. If the evidence offered was to prove such fraud and false swearing on the part of Hoffman in his own case, and for his own purposes, it was clearly irrelevant, as in so doing, he was not acting as their agent, and they are only answerable for, and can only be affected by, such of his acts, as are done in the course of his employment. The plaintiffs, moreover, were not parties to the suit in the commercial court. It is res inter alios acta, and can not be used against them.

A third bill of exceptions was taken to the admission of Hoffman's testimony, which was objected to on the ground that he had sworn to a statement of the loss as being the amount of his loss; that he was charged in the answer with being the real plaintiff; and that the defendants had expressly charged that the fire was caused by the fraud or negligence of said witness, with the view of defrauding them. We think that the judge decided rightly. The affidavit was made by the agent named as such in the policy. When he swore to the loss as his, such an oath necessari y referred to the character in which he was recognized and acted when he effected the insurance. As to the mere allegations of an answer, they can not be considered as sufficient to exclude any witnesses offered by the plaintiff in a cause. When the Jury were about to retire, the defendants moved the targe them, that the sale of the damaged goods at auc

tion, without the consent of the underwriters, was not a proper criterion by which to ascertain the damage done to the property insured. The consent of the defendants that a sale of the goods should be made at auction having been shown in the present case, the judge refused, and properly, we think, to instruct the jury as required. The question as to what course should have been pursued, had no such consent been given, was not before the jury. The instruction called for was not, therefore, necessary to assist them in deciding the case. On the merits the evidence, in our opinion, sustains the verdict of the jury.

Judgment affirmed.

NEGLIGENCE OR MISCONDUCT Of Insured, or HIS SERVANTS, is no defense to an action for a loss from one of the perils insured against: St. Louis Ins. Co. v. Glasgow, 41 Am. Dec. 661, and note. See also Teasdale v. Charleston Ins. Co., 3 Id. 705; Whitney v. Ocean Ins. Co., 33 Id. 595. The principal casə is approved on the same point in General Mutual Ins. Co., 1 Blatchf. 255, and Nelson v. Suffolk Ins. Co., 8 Cush. 497.

RECORD OF FORMER SUIT NOT EVIDENCE AGAINST ONE NOT A PARTY: See Newsom v. Lycan, 20 Am. Dec. 156; Osgood v. Manhattan Ins. Co., 15 Id. 304; Lawrence v. Hunt, 25 Id. 539; Birely v. Staley, 25 Id. 303; Fitzhugh v. Croghan, 19 Id. 139. But that a former judgment may in certain cases be evidence against one not a party, see Vaughan v. Phebe, 17 Id. 770; Garland v. Rives, 15 Id. 756; Richardson v. Hobart, 18 Id. 70; Stephens v. Jack, 24 Id. 583; Lawrence v. Hunt, 25 Id. 539.

INSTRUCTIONS WHICH THERE IS NO EVIDENCE TO SUPPORT may be refused: State v. Reigart, 39 Am. Dec. 628, and cases collected in the note thereto; Doty v. Strong, 40 Id. 773.

MOCARGO v. NEW ORLEANS INS. Co.

[10 ROBINSON, 202.]

TERMS "MUTINY" AND "INSURRECTION" IN MARINE POLICY of insurance on a cargo of slaves are substantially identical in meaning. "WARRANTED FREE FROM INSURRECTION" IN MARINE POLICY of insurance

on a cargo of slaves imports merely that the insurers are not to be liable for a loss from that cause, and does not constitute a warranty against in. surrection on the part of the assured.

NATION TO WHICH VESSEL BELONGS HAS EXCLUSIVE JURISDICTION over it while on the high seas, in time of peace, engaged in a lawful voyage. VESSEL OF ONE NATION LYING IN PORT OF ANOTHER friendly power is subject to the jurisdiction and laws of the former nation so far as the mutual rights, duties, and obligations of those on board are concerned, though she and they are answerable to the laws of the place for any unlawful acts committed while so situated.

SLAVES ON AMERICAN VESSEL LYING IN BRITISH PORT ARE NOT RELEASED from slavery by the British laws against that institution, where such

vessel, while sailing from one American port to another, is captured by an insurrection of the slaves and forcibly carried into such port. INSURANCE LAW REGARDS THE PROXIMATE AND NOT THE REMOTE CAUSE

as occasioning a loss, but the last is not necessarily the proximate cause. CONSEQUENCES NATURALLY FLOWING FROM OR INCIDENT TO PERIL INSURED AGAINST, are attributable thereto.

INSURRECTION OF SLAVES IS REGARDED AS PROXIMATE CAUSE OF Loss in

case of an insurance on a cargo of slaves, where the slaves rise and take the vessel and carry her into a British port where they escape; and the insurers, therefore, are not liable if the policy contains a clause exempting them from liability for loss by insurrection.

INSURANCE AGAINST 'ARRESTS, RESTRAINTS, AND DETAINMENTS of kings, princes, or people," applies to captures, detentions, etc., by the commissioned agents of a lawful government, and does not, it seems, cover a loss caused by a mob in a foreign port.

APPEAL from New Orleans commercial court. The opinion states the case.

F. B. Conrad, T. Slidell, and Benjamin, for the appellants. Peyton and I. W. Smith, contra.

By Court, BULLARD, J. This case, together with six others, growing out of the loss of the slaves on board the brig Creole, which was carried by the mutineers into the harbor of Nassau, in November, 1841, and which has been the subject of so much diplomatic, as well as forensic discussion, was elaborately argued last summer, before the adjournment of the court, both by brief, and viva voce. They are actions upon several policies of insurance, underwritten by different insurance companies in this city, upon slaves shipped on board that vessel for this port. As all the cases relate to the same voyage, and all the slaves insured were lost at the same time and by the same disaster, they have all been considered together; and it is supposed that the opinion which we are about to pronounce in one of the cases, will be decisive of all.

The first question is, what risks did the insurers assume? In the present case, and in three others, the terms of the policy are: "Warranted free from elopement, insurrection, and natural death." In one of them, to wit, Lockett v. The Firemen's Insurance Co., it is stipulated that the "insurers are not liable for suicide, mutiny, natural death, or desertion." In the remaining two cases, it is declared that the company shall not be liable for "suicide, desertion, or natural death." In common parlance, there is little or no difference between mutiny and insurrection. In this very case, in the briefs of counsel, in the statements of witnesses, and in the official correspondence, the rising of the