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murder and was taken to the house of Mrs. Hitchcock, remained there all night. On the following morning Sullivan, a witness for the government, and his step-son were riding by the house of Mrs. Hitchcock, and saw her on the porch. He thought she called to him, and he stopped his horse, but she told him not to come in. She said she wanted his step-son. The young man went into the house, and remained there four or five minutes.

In offering this evidence the district attorney said that he proposed to show a conspiracy between Mrs. Hitchcock, the plaintiff in error, Wacoo Hampton and Roach to kill Brown Hitchcock; that she was primarily responsible for the murder, and that they went by her direction on that evening for the purpose of committing murder. The district attorney assumed that she did not want Sullivan to come into her house, because Roach was there. The counsel for the plaintiff in error strenuously objected to the admission of the testimony of Sullivan as to what Mrs. Hitchcock said, on the ground that, even if she were a co-conspirator, her statements and declarations, made after the killing, were not competent against the plaintiff in error. The court held that the witness might testify as to what Mrs. Hitchcock said as tending to establish the conspiracy. On the subject of conspiracy the court in its charge said:

"You are to look at it as the motive power which may point to the act done, only by circumstances, such as association of the parties together, such as their being connected together at the time of the doing of the act, such as their association after the act, such as their declaration as to their participation in the act. All these things may be taken into consideration by you for the purpose of showing the existence of conspiracy, of an unlawful understanding to commit the act that was a crime, that was an act of murder."

And in that connection the jury were further instructed that:

"If the defendant was on an unlawful mission, if he had entered into an understanding to kill Hitchcock, or if he had entered into an understanding to assist others in resisting

Opinion of the Court.

arrest, or resisted an arrest that could properly be made, he was entering upon the commission of an act where there was a purpose to do an unlawful act, and he would be in the wrong; he would be entering upon a state of case that he had no right to enter upon.

"If the defendant was travelling with Wacoo Hampton for the purpose of preventing his being arrested, prompted by a determination to resist efforts to arrest him, then he was in the wrong; he had entered upon the performance of an unlawful enterprise of a character that might result in death, an enterprise that was unlawful under the law, because Wacoo Hampton had no right to resist arrest. It was his duty to submit to arrest at the hand of any officer or any citizen, and whoever engaged in criminal purpose to assist him in resisting that arrest had entered upon the execution of a wrongful act of [such] a character that, if the arrest was attempted to be executed and resistance offered, it might result in death; and when parties agree to enter upon a common criminal enterprise of that kind, of the kind that as the direct result of its execution death may be the consequence, and the party or parties killed were seeking to make the arrest in the proper way of another than the defendant in this case, killed by Hampton, for example, the act of Hampton in killing was the act of this defendant, because, it is an act that would naturally, reasonably, and probably grow out of the resistance to the arrest offered or agreed to be offered. . . If there was a design upon the part of this defendant to assist Wacoo Hampton in resisting that arrest, and in the resistance offered to it these two men were killed, the act of killing would be the act of the defendant, and the act of killing would be an act of murder upon the part of all who participated in it, of all who entered into the unlawful agreement to resist arrest, and who were present at the execution of that unlawful agreement which resulted in the death of the parties."

Considered in connection with these instructions, the court improperly admitted the testimony, as to what Mrs. Hitchcock said after the killing, as evidence tending to establish a conspiracy between the plaintiff in error and herself and others to

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kill her husband. It was furthermore objectionable because there was no evidence in the case tending to show that the defendant, or his alleged co-conspirators, killed either of the deceased under the mistaken supposition that either one of them was Hitchcock. In the admission of the statements and declarations of Mrs. Hitchcock the court assumed that the acts and declarations of one co-conspirator, after the completion or abandonment of a criminal enterprise, constituted proof against the defendant of the existence of the conspiracy. This is not a sound proposition of law.

In Logan v. United States, 144 U. S. 263, 309, Mr. Justice Gray, speaking for the court, said: "The court went too far in admitting testimony on the general question of conspiracy. Doubtless in all cases of conspiracy, the act of one conspirator in the prosecution of the enterprise is considered the act of all, and is evidence against all. United States v. Gooding, 12 Wheat. 460, 469. But only those acts and declarations are admissible under this rule which are done and made while the conspiracy is pending, and in furtherance of its object. After the conspiracy has come to an end, whether by success or by failure, the admissions of one conspirator by way of narrative of past facts, are not admissible in evidence against the others. 1 Greenl. Ev. § 111; 3 Greenl. Ev. § 94; State v. Dean, 13 Iredell, 63; Patton v. State, 6 Ohio St. 467; State v. Thibeau, 30 Vermont, 100; State v. Larkin, 49 N. H. 39; Heine v. Commonwealth, 91 Penn. St. 145; Davis v. State, 9 Tex. App. 363." The same proposition is stated in the following authorities: People v. Davis, 56 N. Y. 95, 103; New York Guaranty & Indemnity Co. v. Gleason, 78 N. Y. 503; People v. McQuade, 110 N. Y. 284, 307; also Wharton, Crim. Ev. (9th ed.) § 699.

Tested by the rule laid down in these cases, the acts and declarations of Mrs. Hitchcock, on the morning after the killing, were not competent evidence against the plaintiff in error, of the existence of any conspiracy on his part, to kill her husband, or to resist the arrest of Hampton, or to commit any other unlawful act, such as the court instructed the jury would render him responsible for the acts done by his associates while engaged in a criminal enterprise. If a conspiracy was sought

Syllabus.

to be established affecting the plaintiff in error, it would have to be by testimony introduced in the regular way, so as to give the accused the opportunity to cross-examine the witness or witnesses. It could not be established by acts or statements of others directly admitting such a conspiracy, or by any statement of theirs from which it might be inferred.

The case having to be reversed for this error, it is not deemed necessary to consider the other assignments relating to matters which may not occur upon another trial.

For the erroneous action of the court below in improperly admitting the testimony of Sullivan as to what Mrs. Hitchcock said after the killing, as evidence tending to show a conspiracy, and in charging the jury that the declarations of a party or parties as to their participation in the criminal act were competent evidence of the conspiracy, as against the plaintiff in error, the judgment of the court below must be Reversed, and the cause remanded to the Circuit Court of the United States for the Western District of Arkansas, with direction to set aside the judgment, and award plaintiff in error a new trial, and it is accordingly so ordered.

WAGER v. PROVIDENCE INSURANCE COMPANY.

PROVIDENCE INSURANCE COMPANY v. MORSE.

APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF NEW YORK.

Nos. 41, 49. Argued October 18, 1893. Decided November 6, 1893.

Where a bill of lading provides that in case of loss the carrier, if liable for the loss, shall have the benefit of any insurance that may have been effected on the goods, this provision limits the right of subrogation of the insurer to recover over against the carrier, upon paying to the shipper the loss.

Where the carrier is actually and in terms the party assured, the under

Opinion of the Court.

writer can have no right to recover over against the carrier, even if the amount of the policy has been paid by the insurance company to the owner, on the order of the carrier.

The claim of the master of the vessel, through whose loss the loss of the goods insured took place, to exemption from liability to the insurance companies having been adjudicated against him, and the appeal to this court on that judgment having been dismissed for want of jurisdiction, he is estopped from again setting up that claim in this case.

IN ADMIRALTY. The case is stated in the opinion.

Mr. J. A. Hyland for Wager.

Mr. Edward D. McCarthy, for the Providence Insurance Company and another.

Mr. Spencer Clinton, (with whom was Mr. George Clinton on the brief,) for Morse.

MR. JUSTICE SHIRAS delivered the opinion of the court.

In May, 1883, Armour, Plankinton & Co., grain merchants, having their place of business at New York city, were the owners of a cargo of wheat, which they desired to have brought from Buffalo to New York. Henry Morse and Alanson Morse, composing the firm of H. Morse & Co., were doing business as intermediaries or middlemen between boatmen and shippers in procuring cargoes to be shipped. Charles E. Wager was the master and owner of the canal boat William Worden, and also of the steam canal boat Sydney.

Through one Meadows, as their agent, Armour, Plankinton & Co. made a contract with H. Morse & Co., whereby the latter employed Charles E. Wager to take the cargo of wheat, amounting to 7900 bushels, on the boat William Worden, for transportation from Buffalo to New York.

In the spring of 1883, before this cargo was shipped on the canal boat William Worden, the said insurance companies delivered to H. Morse & Co. an open or running cargo policy, which contained the following terms and covenants: