
    It was also contended, that notice of the abandonment to the broker did not chai'ge the underwriter, unless it was traced to him also. The defendant urged that the broker was the agent of the assured, being employed by him. Lex Mercat. Red. 456. Weslc 65, § 8. The local circumstances of both countries do not disagree in this particular. If the broker omits to do his duty, he and not the insurer is responsible. [An eminent insurance broker was examined to this point, who also asserted, that though by the silence of the insurer, on receiving notice of the abandonment, he accedes thereto, yet he does not thereby em-voi power the ^assured to proceed on the appeal; and if the 3' -1 latter goes on without the authority of the former, it is at his own risk. But another broker of considerable experience was of opinion that the assured generally went on with their appeals, on receiving no answer from the insurer, and the assured were deemed bound to prosecute their appeals in proper cases.] The offer of a cession made and not agreed to, might be relinquished by the insured, when he prosecuted his appeal. To prosecute it without the concurrence of the underwriters, and yet charge them with the costs, is highly absurd. If the ábandonment is accepted, the insured have nothing further to do with the property. If otherwise, they may elect either to proceed against the underwriters, or prosecute their appeal. The clause to labour, &c. in the policy, relates only to acts done before abandonment. The acts of the captain shall not prejudice the right of abandonment. 1 Term Rep. 608.
    On the other hand it was insisted, that though the broker was originally applied to by the insured, yet in the progress of the business, he becomes the agent of both parties. This is the general idea, and one striking circumstance proves' it, that in insurances of property no one ever counted on the accountability of the broker. Whether an agreement be made by the parties personally, or by a broker mutually employed, it is equally binding. 1 Dall. 420. In the Supreme Court of the United States, Duncans. Coates, Judge Chase held that a verbal notice of abandonment to an insurance broker was sufficient. Demanding payment as for a total loss is equivalent to abandonment;— said by the counsel on one side and not denied by the other or the court. 8 Term Rep. 273. But the plaintiff is under no necessity of relying on this point, since notice to the defendant himself of the abandonment may fairly be inferred from his meeting the other underwriters, to consult on the loss, immediately after the date of the letter of the 27th January 1794. A relinquishment of the abandonment will not be implied against the express declared intention of the party in the act of cession.
    The court were of opinion, that though the broker in the first instance might with the strictest propriety be deemed the agent of the party employing him, yet when the policy is effected, he necessarily becomes the agent of both parties. He receives the premium for the underwriters, and settles the proportional quotas in case of a loss. In the reason of the thing, founded on common experience, a notice of abandonment to him must be sufficient. The costs of the appeal may be involved in the other point, about which the brokers have disagreed, but the relinquishment of the '^abandonment cannot be implied under [*379 the circumstances of this case.
    It was urged as a ground of defence, that the decrees of the admiralty courts in Jamaica and Great Britain precluded the plaintiff from recovery. The sentence of a court of admiralty, binds all the world as to every thing contained in it. Where the condemnation goes upon the ground that the vessel was not neutral, it is conclusive evidence. Parke, 403. (1st edit.) This fully appears from the cases of Barzillay v. Lewis, cited Ib. 410, and Saloucci v. Woodmass, Ib. 413. Whenever the sentence is general and no special ground is stated, it will be conclusive and binding, and other courts will not assume the office of reviewing the proceedings of a forum, having competent jurisdiction of the subject matter. Ib. 417. Where property has been condemned as lawful prize, without expressing a ground, it will refer to the libel. Prizes are acquisitions jure belli. Doug. 585, 591. And in the Supreme Court of the United States, in February term 1800, Vasse v. Tingey, Judge Washington observed, that prize was property taken from an enemy jure belli. Here the decree condemns the cargo, either as wholly belonging to French .citizens, enemies of Britain, or that a part of it being clearly ascertained to be French, and blended with other property about which there was no credible proof, and the captain having grossly perjured himself in material facts with a design to disguise and conceal the truth, the judge found it out of his power to discriminate, and condemned the whole in one mass. There is nothing dubious in the sentence. It rests not on foreign ordinances, contravening the law of nations. It ascertains that the cargo belonged to the enemies of Great Britain, whereas the plaintiff’s property was insured as American. Of what moment then can it be, that there is no warranty that it was American property ? It was represented as such, and by the sentence in the admiralty, it is found to be otherwise, to which implicit credit is to be given. The case of Christie v. Secretan, 8 Term Rep. 192, will be cited against us. The point there determined, was, that an American vessel, which the broker refused to warrant, having all the documents on board required by the treaty between France and America, but not having the Roll d' Equipage required by the French ordinance, and being afterwards condemned in Nantes, the insured had a right to recover.
    The plaintiff answered, that the ground of condemnation did not expressly appear by the sentence, and therefore he was not concluded thereby. All the decisions settle a material difference between policies with, and without a warranty. Whatever solidity there may be in the distinction, considered upon principle, *it certainly has obtained; and in all the cases wherein *380] the decrees of foreign courts of admiralty have precluded the insured from recovery, there have uniformly been warranties. Lord Chief Justice KenyoN asserts this to be the law in the case cited. 8 Term Rep. 196. And where a loss has been proved by the insured, the burthen is thrown on the insurer, to shew why he should not be responsible for the loss. Ib. 197. Per Grose, Just. And of this opinion was the court.
    The defendant’s counsel admitted, that a policy subscribed in time of peace, continued binding though a war should break out; but further insisted, that here was an express warranty against illicit or prohibited trade, and the brig had notwithstanding been engaged in such trade. Contraband articles affect innocent parts of the cargo, belonging to the same person. 1 Robins. Admty. Cas. 26. The vessel will even be forfeited thereby. Ib. 165. — Where papers are suppressed, it must be considered as a proof of mala jides; and where that appears, it is an universal rule, to presume the worst against those who are convicted of it. Ib. 113. In prize courts, the rule of falsus in uno falsus in omnibus, is a rule of unexceptionable justice. Ib. 213. Transporting enemy’s property under false papers and a false mask, is cause of confiscation. Ib. 135. The master, is the agent of the owner of the vessel, and can bind him. by his contract or his misconduct. 2 Rob. 70, 71, 127, 131.
    When it is generally said, that in case of a war breaking out, the insurers must bear the risk, this restriction must naturally exist, that the insured must conduct themselves by the strict rules of neutrality. So every ship insured, must at the time of the insurance, be able to perform the voyage, unless some external accident should happen. Parke, 249. 5 Burr. 2804. Every neutral vessel should have all the papers necessary to shew her neutrality. If she has them not on board, the underwriters will be excused. 8 Term Rep. 197. The ship must not forfeit her neutrality by the conduct of any one on board. Ib. 230. The insured must prosecute the voyage in the policy without doing any thing to the prejudice of the insurer, so as increase his risk. Ought thé master to have accepted on freight, the goods of the French citizens of St. Domingo, disguised as American property, under false marks ? Ought he not candidly to have declared on his capture, the true state of the property on board, instead of concealing his papers, and adding to his former weakness the crime of perjury ? The risk to the insurers, is as much increased by this improper conduct, as if he had hired his vessel to one of the belligerent powers, or entered a harbour, while in a state of blockade.
    *The plaintiff’s counsel observed, that the policy respected a certain species of illegal trade; a smuggling [*381 voyage to a French and Spanish island, was contemplated and mutually understood by both parties. The illicit or prohibited trade in the policy, applies to a violation of the revenue laws. The homeward cargo consisted of West India produce, and not the contraband articles referred to in Dr. Robinson’s reports. The decree in the admiralty does not express, the prohibited trade as the ground of condemnation; if it had been considered as such, we should have been sure to have heard of it, from a British West India judge. It is admitted, that the conduct of captain Price is highly reprehensible, and that he has gone much too far to assist the interests of his owner. Still he was not totally to be disbelieved. But if he was even guilty of corrupt perjury, it will not convert the property of the plaintiff into French property, so as to influence the decision of the present cause. The risk of future war is taken by the underwriter in every policy. Dougl. 708. Throwing papers overboard, is a strong ground of suspicion, but of itself, is not a sufficient ground of condemnation, says Lord Mansfield. Dougl. 560. And per Buller, Just. The wilful throwing of papers overboard, is only presumptive evidence of enemy’s property. Ib. But in what particular, has the captain broke the rules of neutrality ?— Where is the warranty for his neutrality ? — The policy was subscribed in a state of peace. — If the goods of a belligerent are openly taken on board a neutral vessel, this is no breach of neutrality; the property when captured by the enemy, is liable to condemnation, but the owner will be entitled to his freight. If the property was attempted to be covered, the freight would be lost; but in neither case, would it be a ground of condemnation of other goods belonging to other persons, nor would the underwriters in either case be discharged. The true question is, had not the plaintiff property on board, to the amount of the sum insured ? Of this the jury have had abundant proof; and if a loss has happened in the course of the voyage insured, the plaintiff is entitled to a recovery, within the terms of the policy.
    After the counsel had fully spoken to the cause, Shippen, C. J. delivered the charge of the court to the jury, substantially as follows:
    It is a settled principle, that policies of insurance shall always be construed according to the intention of the contracting parties, and not according to the strict and- literal meaning of the words. Parke 33. They shall be taken largely for the benefit of *trade, and for the insured, and the usage of trade may 1 be called in to explain any doubts. Ib. 44. 1 Burr. 348. Insurances made in time of peace continue, though a war should break out; but it would be inequitable that the insured should do any thing in the voyage insured, which should add to the risk of the insurer. The latter runs sufficient risks in the event of a war, without being subjected to new chances. The case of deviation may be fairly brought in by way of analogy. If there is a voluntary departure without necessity, or any reasonable cause, from the regular and usual course of the specific voyage insured, the underwriters are discharged from any responsibility. Nor is it at all material, whether the loss be or be not an actual consequence of the deviation; for the insurers are in no case answerable for a subsequent loss, in whatever place it happen, or to whatever cause it may be attributed. Neither does it make any difference, whether the insured was or was not consenting to the deviation. Parke 335, 336. It seems here, that a smug-ling voyage to a French island, was mutually understood to be insured. The captain was the agent and immediate consignee of the cargoes at New Orleans and Port au Prince. On a war breaking out between Great Britain and France, he might perhaps have taken French property on board at the latter port, but be ought not to have masked it as American property, under the false marks of the initials of his owner’s name. He should have transacted business in the ordinary mode by signing bills of lading, and having regular invoices of the shipments made for his owner. Whether the West India admiralty judge and the Court of Appeals have given correct sentences or not, it is not our province to determine; but certainly, when it appears that enemy’s property has been covered by false marks to a considerable extent, no invoices or other documents to ascertain the plaintiff’s interest produced, papers proved to have been privately concealed, and the captain and consignee has been guilty of wilful false swearing, the mind of every reasonable man will be affected by such testimony. The judge must see this mass of circumstances in the same light in which it would strike the common understandings of mankind. We think in the nature of the thing, that the risk of the insurers must be increased by such conduct of the agent of the insured, and against which the former never undertook to indemnify for the premium which they received. Whether such conduct of the captain increased the risk or not, is a matter proper for the consideration of the jury ; and their verdict must depend on the result of their deliberations on this question.
    
      Louis Crousillat against Joseph Ball.
    S. C. 4 Dall. 294.
    Letter from a captain to his owner cannot be received on the part of the owner as proof of property shipped, without invoices or bills of lading.
    Captain’s protest is evidence on a policy of insurance.
    A broker on effecting a policy is agent of both parties and notice of an abandonment to him is sufficient to charge the insurer.
    As between insurer and. insured, the decree of a foreign court of Admiralty is conclusive only, where warrantees are inserted in the policies.
    Policies in time of peace continue though a war breaks out; but the insured must not do any thing which will add to the risk of the insurer.
    On narr. stating a loss by capture, there can be no recovery on the barratry of the roaster; and where in a special verdict the jury have found certain misconduct of the master, the court will not infer that the risk of the insurer was increased therebv.
    This was an. action on a policy of insurance, dated 29th December 1792, on goods on board the brigantine Sophia, George Price, master, from Philadelphia to New Orleans, and from thence back to Philadelphia, with liberty to touch and trade both on her outward and homeward passages at one port in Hispaniola, upon all lawful goods and merchandize loaden or to be loaden; warranted free from any charge, damage or loss which may arise in consequence of a seizure or detention of the property for or on account of illicit or prohibited trade. The defendant underwrote 200I. on the policy at a premium of' 12I. The declaration stated a.loss by capture.
    It appeared on the trial in December term last, that the plaintiff was the owner of the vessel, and had property on board to the amount of the sums insured. The captain was consignee of the cargo to New Orleans and Port au Prince. The policy was subscribed in the time of peace, but France declared war against Great Britain on the rst February 1793. The captain received on board divers quantities of West India produce from French inhabitants of St. Domingo, which had false marks, being generally marked L. C., and covered them as American property. He cleared out at Port au Prince on the 18th June 1793, and next day was captured by a British privateer schooner called the Little Ann, and carried into Jamaica, where on the nth *July following, the brig and cargo were libelled as prize, -*-376] territories of France, as belonging to Frenchmen, or persons residing in the The captain filed a claim for his owner. On the preparatory proofs in the Admiralty, he swore, that all the cargo belonged either to the plaintiff or himself, except 8 barrels of coffee, and that he had signed no bills of lading for the cargo. He gave no account of his sales at New Orleans or St. Domingo, or any proof of the property bought for his owner ; nor were any invoices or bills of lading at either place produced. He afterwards made a second oath, differing from his former, and attempting to explain what he had at first asserted. After the brig was brought into port, three bags of papers were found secreted in her run, and several bills of lading signed by the captain were discovered. The judge on the 6th November 1793, pronounced his definitive decree, as follows,: “ That the “several goods, wares and merchandizes, slaves and effects “libelled against in this cause taken, &c. were and are good and “ lawful prize, and that the said goods, &c. be confiscated and “ condemned to our sovereign lord the king, to the use of the “commander, his owners, officers, seamen and mariners, of, &c. “ relators in this cause, and that the same be sold, &c. That “the said George Price, as the claimant of the several goods, “&c. condemned as aforesaid, or of the greatest part thereof, “ be condemned in the costs of the said relators, occasioned by “ the said claim. That the said brig be and is hereby acquitted “and discharged from the seizure thereof; and that the same “be restored to the said George Price, the claimant thereof, on “ behalf of the said Louis Crousillat. And it appearing from “ the examinations taken in the cause, and from the bills of lad- “ ing and other papers lodged in manner aforesaid, that the said “ George Price, in his conduct as master of the said brig, and as “a neutral subject, had not observed a fair and proper neutrality “ in carrying the said cargo, that he or the said Louis, as owner, “ was not entitled to any freight for the goods, &c. condemned “as aforesaid, and therefore the same was disallowed.”
    From this decree an appeal was entered.
    On the 27th January 1794, the plaintiff sent a letter to John Taylor, the broker, at whose office the insurance was effected, desiring him to inform the underwriters of his abandonment of the cargo, and referring him to the captain’s protest and copy of the admiralty proceedings in Jamaica. It did not appear expressly that the defendant, received notice hereof, but he and the other underwriters had a meeting shortly after on the subject of *the loss. The insurers having thirty days to pay in case ^ of a loss, by the terms of the policy, gave no answer on *- 377 being notified of the protest and cession, as was proved to be customary in such cases ; and the plaintiff prosecuted his appeal in Great Britain without consulting them, where on the 9th December 1794, the decree of the admiralty court was affirmed by the Lords Commissioners of Appeal, except as to the costs, which were remitted.
    The present suit was brought to March term 1796.
    
      A question of evidence arose on the trial. Certain letters received by the plaintiff from his captain, dated at New Orleans and Port au Prince, were offered in evidence to shew in what manner the cargo had been shipped, and by whom the particulars were owned. The defendant’s counsel objected that the captain was the plaintiff’s immediate agent and consignee at both places. It was not a mercantile case, wherein there should be a relaxation of the strict rules of law, on any ground of presumed necessity. He ought to have been examined upon a commission, and have shewn his invoices and bills of lading. The plaintiff answered, that the captain had subscribed no bills of lading, but that his letters were substantially the same thing, his signature being verified. A bill of lading, with the captain’s oath that the articles were on board, are proof of interest, i Espin. Rep. 373. Property in a cargo proved by a bill of parcels from abroad, and a receipt thereon, the hand writing being proved. 2 Stra-. 1127. But the court ruled that the letters could not be received in evidence without the utmost danger. Invoices and bills of lading are the usual modes of proving property, of which no seaman is ignorant, though they are not exclusively so. As well might the letters of the owner himself be produced to prove the property in the goods shipped, as those of his agent and consignee. We go further than the courts of Westminster Hall, in allowing the captain’s protest to be received in evidence in all cases of insurance. But in England it is refused, unless under certain special circumstances in late cases. 7 Term Rep. 158. 2 Espin. Rep. 490.
    
      *The jury after staying out a considerable time, de- „ dared they could not agree on a general verdict. At ^ 3 3 length they found the following special verdict: “ That Louis “ Crousillat, the plaintiff, caused the insurance to be made as “ laid in the declaration ; that he had property on board the brig “ Sophia therein mentioned, to the amount insured; that the “ defendant subscribed the policy (prout policy ;) that the said “brig was captured and carried into Kingston, (Jam.) by a Brit“ish privateer, where she was libelled, as stated in the copy of “ the record of the proceedings of the Court of Vice Admiralty “ (prout copy of record) and finally condemned- (prou.t decree;) “that George Price, the captain of the said vessel, and consignee of the plaintiff’s property on board the same, in the “course of the proceedings in the Court of Vice Admiralty, “was guilty of perjury (prout depositions ;) that there were false “marks on goods on board the said Sophia, when so captured, “differing from the oath made by the said George Price, and “also that papers were concealed on board the said brig Sophia; “ that the plaintiff abandoned to the defendant, and claimed for “ a total loss in due time; and that this suit was commenced in “ due time, after the expiration of the time mentioned in the “ policy; and if upon the whole the court shall be of opinion “that the law is in favour of the plaintiff, the jury find for the “plaintiff and assess damages at $1024.-^^) but, if in favour of “the defendant, then they find for the defendant.”
    To this special verdict an agreement was subjoined, subscribed by the counsel, that notwithstanding the special verdict in this cause refers to the decree of condemnation, that decree is not to be considered, nor contended for by the defendant, as conclusive on the plaintiff.
    The special verdict came on to be argued this term.
    The plaintiff’s counsel urged, that the captain was not consignee of the return cargo, nor was it intended to convey that idea by the special verdict'. What Price did was of his own head and not in pursuance of the plaintiff’s directions ; nor does it appear that the conduct of the captain was the ground of condemnation, but the cargo was condemned as French property. The captain appears to have committed barratry, and the defendant is thereby chargeable. Any act of the master or of the mariners, which is of a criminal nature, or which is grossly negligent, tending to their own benefit to the prejudice of the owners of the ship, without their consent or privity, is barratry. % p -1 * Parke 94. 2 Ld. Ray. 1349. 1 Stra. 581. 2 Stra. 1-1/3. 3 4J Cowp. 143. 1 Term Rep. 323. 4 Term Rep. 33. 7 Term Rep. 506, 508.
    Here then are all the ingredients found which constitute bar-ratry. The captain must have sworn falsely to derive a benefit therefrom to himself. He claimed part of the property on board. He was entitled to his customary average and dues. Taking of a prize against the owner’s instructions, is barratry. So of any act which increases the risk. 6 Term Rep. 379, 383. 1 Espin. Ni. Pri. Rep. 339. Though it must be owned, fraud must exist in such cases. 7 Term Rep. 505, 508. The interest of the master is an ingredient in barratry, only so far as it shews fraud in him, but is not an essential circumstance. Though he may conceive his acts to be for the benefit of his owner, yet if they be fraudulent, it is barratry notwithstanding. Thus resistance to an embargo lawfully laid, is an act of barratry. 1 Term Rep. 127. We know that the case of Elton v. Brock-den, 2 Stra. 1264, will be cited against us. It professes to- say, that the mariners forcing the master to go out of the course of the voyage, and running away with the ship under the circumstances of that case, did not amount to barratry, because not done to defraud the owners. Lord Mansfield thought that case imperfectly reported. Cowp. 154. No decision can be shewn, where on an act in the master criminal in itself, an interest in the owners is necessary.
    The counsel for the defendant contented themselves with observing in answer, that if the plaintiff founded his expectations of recovery on the barratry of his master, he should have declared accordingly. Here the loss is stated by capture. The plaintiff must bring his loss within one of the perils insured against by the policy, but he must always state it according to .the truth; as by capture, fire, detention, barratry, &c. Parke 455. In Cowp. 743, there was a count for barratry. So in Hood v. Nesbit, 2 Dali. 137. And in 8 Term Rep. 234, it is taken for granted, that the barratry must be laid in the declaration.
    The court said, nothing could be clearer, than that the averment of the loss was a most material part of the declaration. If it is not laid truly, or can be shifted from a capture to a barratry, the defendant could never come prepared to answer it. If even the facts were more specially found, as in Hood’s executors v. Nesbit, 2 Dali. 137, we could not take them up as barratry, on the present record.
    The plaintiff’s counsel then said, they would take up the ar*gument next day, on other grounds, if the court would indulge them with a postponement.
    This being granted, they contended, that in determining on the special verdict, the court must necessarily judge either from the matter charged in the libel, and found in the sentence, or from a lawful cause of condemnation by the general law of nations. Every court of judicature will be presumed to have acted rightly. On the latter ground, no cause appears; because the concealment of papers or throwing them overboard, of themselves merely, are not sufficient to condemn, though they amount to suspicion and presumption of enemy’s property. Doug. 560. 1 Coll. Jurid. 135, (case of the Silesia loan.) Nor is it any where asserted, that the brig was pursuing a prohibited trade, not allowed before the war.
    The libel charges the property to be French, and the decree affirms the charge. This was much insisted on by the defendant’s counsel at the trial, and that there was nothing dubious in the sentence of the judge. But the inference then deduced, was, that the sentence being conclusive on the whole world while it remained in force, the plaintiff was precluded thereby from shewing his property insured on board. This event however overruled them upon that point, and the jury have expressly found the plaintiff’s property. The libel charges net breach of neutrality, but the sentence states it as the reason of not allowing the freight. The captain’s perjury arises as to the; ownership of the goods, the marks on parts of them, the bills of lading and the concealment of the papers. But none of these are stated as the grounds of condemnation, whatever effect their might have produced in the mind of the judge. This court cannot substitute conjectural causes of condemnation, which are not mentioned by the judge. They can draw no inferences from the facts set forth in the special verdict, but are confined to the finding. The jury alone could draw those inferences. Where-ever the condemnation goes on a special ground, it ought to be stated. 8 Term Rep. 230. Otherwise it shall be taken to have been on the ground of enemy’s property. Ib. 234. The present case is distinguishable from a deviation, which had an effect on the minds of the court in their charge. There, when the course of the voyage is changed, the act is consummate, the condition is broken, and the policy is determined. So going into a besieged port, and trading with the enemy, this conduct ipso facto discharges the underwriters. But where a neutral vessel passes a blockaded port, or resists forcibly a search at sea, and at a future time is captured and condemned as enemy’s property, the former *conduct will not absolve the insurer. The plaintiff’s property, insurance and loss have been proved. He was L ^ not privy to the acts of the captain nor assented thereto. He has declared on a loss by capture, according to the truth of the case; and if he had declared on the barratry of the master, he would have been defeated by a production of the admiralty proceedings.
    Cited in 61 Pa. 352 in support of the proposition that the court is confined to the facts found in a special verdict, and cannot supply the want thereof by any argument or implication from what is expressly found.
    It was answered by the defendant’s counsel, that sufficient matter does not appear on this special verdict, to entitle the plaintiff to judgment. Yesterday it was said, every thing was criminal and fraudulent as to the captain; now he ceases to be a barrator, his conduct is softened and almost venial, and could have little effect on the mind of the judge. If the false marks on the goods, concealment of papers, and perjury of the master, did not produce the condemnation of the whole cargo, we must seek in vain for the grounds of the decree. A part of the property was ascertained to be French from the secreted papers and bills of lading afterwards discovered, but this referred immediately to such part of the cargo only. The sentence must necessarily be founded on the collected mass of suspicious circumstances exhibited in the cause; and it is submitted to the court, whether they may not fairly infer this from the whole of the admiralty proceedings. If they can, then the analogy between this case and deviation strongly holds, the risk of the underwriter being increased by the conduct of the captain, and the policy having contemplated no such additional risk. In an indictment for a capital offence, the jury found a special verdict, that the defendant encouraged and abetted, &c., and the court held it tantamount to aiding and assisting. 4 Burr. 2081. They inferred it as a necessary consequence of. the act found. So in 2 Lord Ray. 1490, they inferred malice from the facts found in a special verdict on an indictment for murder in the case of Major Oneby.
    Messrs. Tilghman, Dallas and Du Ponceau, pro quer.
    
    Messrs. Ingersoll and Rawle, pro def.
    
   By the Court.

The word abetting made the party a principal in the second degree. 4 Burr. 2082. And it is the province of the court to determine what acts afford proof of malice. Burr. 396, 474, 937. 3 Term Rep. 428. But it is clearly settled that we are confined to the facts found in a special verdict, and cannot supply the want thereof, by any argument, or implication from what is expressly found. 2 Haw. c. 47, § 9. Is it possible for this court to infer that the conduct of captain Price increased the risk of the insurer, (though our private judgments may be fully satisfied on that point) when it has been submitted as a fact proper for the jury’s consideration, and they could not agree in their conclusion after repeated efforts ? No judgment *can be rendered on this verdict, and therefore a venire *387] facias de novo is awarded.  