[Poole v. Fleeger.]

this case, whether this prohibition of the constitution is not to be understood as necessarily subject to the exception of the right of the states, under the same constitution, to make compacts with each other; in order to settle boundaries and other disputed rights of territory and jurisdiction.

In the progress of the trial one or two other objections were made, which may require some notice. The defendants objected to the introduction of the will of Frederick Rohrer, under which the plaintiffs claimed as devisees, as evidence; first, because the probate and certificate of that will (it having been made and proved in Pennsylvania) were not such as to authorize its registration in the state of Tennessee; secondly, because the will was not registered in the state of Tennessee, until after the institution of this suit. The court overruled the objection. But it does not appear that any exception was taken to the opinion of the court upon this point, at the trial. On the contrary, the record states, that "no exception to the opinion of the court permitting the will to be read was taken in the progress of the trial, nor was it stated that the right to do so was reserved. The practice of the court is, for exceptions to be taken after trial, if deemed necessary." Under these circumstances, some difficulty has arisen as to the propriety of taking any notice whatsoever of this objection. In the ordinary course of things at the trial, if an objection is made and overruled as to the admission of evidence, and the party does not take any exception at the trial, he is understood to waive it. The exception need not, indeed, then, be put into form, or written out at large and signed; but it is sufficient that it is taken, and the right reserved to put it into form, within the time prescribed by the practice or rules of the court. We do not find any copy of the will or any probate or certificate thereof in the record, or any registration thereof; and it is, therefore, impossible for us to say, whether. the ground assumed in the first part of the objection is well founded This leads us strongly to the inference, that the objection was intentionally waived at the trial. The second ground is clearly unmaintainable; for, if the registration was rightfully made in Tennessee, it has relation backwards; and the time of the registration is wholly immaterial, whether before or after the institution of the suit.

or not.

Another objection made by the defendants at the trial was to the evidence of title offered by the lessors of the plaintiff, upon the ground that this title was a tenancy in common, which would not in

[Poole v. Fleeger.]

law support a joint demise. This objection was overruled, with an intimation that the point would be considered on a motion for a new trial. No exception was taken to this ruling of the court; and the new trial was, upon the motion, afterwards refused. The party not taking any exception, and acquiescing in the intimation of the court, must be understood to waive the point as a matter of error; and to insist upon it only as a matter for a new trial. But it is unnecessary to decide the point upon this ground; for, in the state of Tennessee, the uniform practice has been, for tenants in common in ejectment, to declare on a joint demise, and to recover a part or the whole of the premises declared for, according to the evidence of title adduced. This was expressly decided by the court in Barrow's Lessee v. Nave, 2 Yerger's Rep. 227, 228; and on that occasion the court added that this practice hau never been drawn in question as far as they knew, or could ascertain; and in fact no other probably could be permitted after the act of 1801, ch. 6. sec. 60, which provided, "that after issue joined in any ejectment on the title only, no exceptions to form or substance shall be taken to the declaration in any court whatever."

The judgment of the circuit court is therefore affirmed, with costs.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of West Tennessee, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this Court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed, with costs.

WILLIAM WATERS V. THE MERCHANTS' LOUISVILLE INSURANCE COMPANY.

Insurance. The Steamboat Lioness was insured on her voyages on the western wa. ters, particularly from New Orleans to Natchitoches on Red river and elsewhere, "the Missou and Upper Mississippi excepted," for twelve months. One of the perils insured against was, "fire." The vessel was lost by the explosion of gunpowder. "On the trial of the cause the judges of the circuit court of Kentucky were divided in opinion on the following questions, which were certified to this Court; 1. Does the policy cover the loss of the boat by a fire, caused by the barratry of the master? 2. Does the policy cover a loss of the boat by fire, caused by the negligence, carelessness, or unskilfulness of the master and crew of the boat, or any of them? 3. Is the allegation of the defendants in these pleas, or any of them, to the effect that the fire by which the boat was lost, was caused by the carelessness or unskilful conduct of the master and crew, a defence to this action? 4. Are the pleas of the defendant, or either of them, sufficient?"

A loss by fire, when the fire was directly and iminediately caused by the barratry of the master and crew, as the efficient agents when the fire was communicated,—and occasioned by the direct act and agency of the master and crew, intentionally done from a barratrous purpose, is not a loss within the policy; if barratry is not insured against.

If the master or crew should barratrously bore holes in the bottom of a vessel, and she should thereby be filled with water and sink, the loss would properly be deemed a loss by barratry, and not by a peril of the seas or of rivers, though the water should co-operate in producing the sinking.

The doctrine as applied to policies against fire on land, has for a great length of time prevailed, that losses occasioned by the mere fault or negligence of the assured or his servants, unaffected by fraud or design, are within the protection of the policy; and as such are recoverable from the underwriters. This doctrine is fully established in England and America.

It is a well established principle of the common law, that in all cases of loss we are to attribute it to the proximate cause, and not to the remote cause. This has become a maxim to govern cases arising under policies of insurance.

In the case of the Columbia Insurance Company v. Lawrence, 10 Peters, 507, this Court thought that in marine policies, whether containing the risk of barratry or not, a loss, whose proximate cause was a peril insured against, is within the protection of the policy; notwithstanding it might have been occasioned, remotely, by the negligence of the inaster and mariners. The Court have scen no reason to change that opinion.

As the explosion on board the Lioness was caused by fire, the fire was the proximate cause of the loss.

If taking gunpowder on board a vessel insured against fire, was not justified by the usage of the trade and therefore was not contemplated as a risk by the policy; there might be great reason to contend, that if it increased the risk, the loss was not covered by the policy.

[Waters v. The Merchants' Louisville Insurance Company.] ON a certificate of division from the circuit court of the United States for the district of Kentucky.

The plaintiff, a citizen of the state of Louisiana, on the 12th day of September, 1832, caused insurance to be made by the Merchants' Louisville Insurance Company, at the city of Louisville, in the state of Kentucky, in the sum of six thousand dollars, on the steamboat Lioness, her engine, &c., to navigate the western waters usually navigated by steamboats, &c.; the assured having the privilege of placing competent masters in command at any time; the insurance to continue for twelve months, until 12th September, 1833.

The perils insured against, were those "of rivers, fire, enemies, pirates, assailing thieves, and all other losses and misfortunes which shall come to the hurt or detriment of the steamboat, her engine, tackle, and furniture, according to the true intent and meaning of the policy."

An action was instituted in the circuit court on this policy, by William Waters, the assured, to November term, 1836; and the plaintiff averred in the declaration an interest in the steamboat Lioness, at the time of the insurance, and up to her loss, of sixteen thousand dollars; that the said steamboat Lioness, her engine, tackle and furniture, after the execution of said policy, and before its termination, to wit, on the 19th of May, 1833, on Red river, about one mile below the mouth of Bon Dieu river, whilst she was on her voyage from New Orleans to Natchitoches, Louisiana, on Red river, were, by the adventures and perils of fire and the river, exploded, sunk to the bottom of Red river aforesaid, and utterly destroyed; so as to cause and make it a total loss. And the plaintiff averred, that said steamboat Lioness was, at the time of the explosion, sinking and destruction aforesaid, by the perils aforesaid, sufficiently found in tackle and appurtenances thereto, and completely provided with master, officers and crew, and in good order and condition, and perfectly sea-worthy.

The declaration also averred, that a regular protest of the manner in which the loss of vessel took place, was made; and the same, with proof of the plaintiff's interest, were delivered to the defendants.

To this declaration, the defendants filed the following pleas:-1. That the officers and crew of the Lioness, at the time of her explosion and sinking, so negligently and carelessly conducted themselves in managing and attending to the safety of the cargo on board, that

[Waters v. The Merchants' Louisville Insurance Company.]

the steamboat was, by means of fire negligently and carelessly communicated to gunpowder in the hold by the officers and crew, blown up and destroyed.

2. That the Lioness was loaded in part with gunpowder, and that the officers and crew, or some of them, carelessly and negligently carried a lighted candle or lamp into the hold where the powder was stored, and negligently handled the candle or lamp at the time that the powder was exploded; and thereby produced the explosion and destruction of the said steamer.

3. That the Lioness was in part loaded with gunpowder; and the same was so unskilfully, negligently, and carelessly stowed away in the boat, by the officers and crew; or some of them, that the gunpowder took fire by reason of the said unskilfulness, negligence, and carelessness; and the boat was consequently lost and destroyed by explosion.

4. That the Lioness received, and had on board a quantity of gunpowder at the time of the explosion, which increased the risk of the insurers, contrary to the true intent and meaning of the policy; by which the insurers were discharged from the obligations of the policy.

5. That the loss of the Lioness was caused by the officers and crew, or some of them, carelessly and negligently carrying a lighted candle or lamp into the hold; and so negligently or carelessly carrying the same, as the explosion of the vessel was thereby produced.

6. That the loss of the boat was caused by the conduct of the officers, managers and crew of the boat, in taking and receiving on board large quantities of gunpowder, and by carelessly keeping the same; in consequence of which he gunpowder became ignited while on board the boat, and by ts explosion caused her loss and destruction.

To these pleas the plaintiff demurred; and the defendants joined in demurrer.

On the argument of the cause, the following questions and points occurred, upon which the judges of the circuit court were divided in opinion; and the same, at the request of the lefendants, were stated, and ordered to be certified to this Court.

1st. Does the policy cover a loss of the boat by a fire, caused by the barratry of the master and crew?

2d. Does the policy of insurance cover a loss of the boat by fire,