delivered the opinion of the court.
The defendants resist the claim on the part of the plaintiff, to be indemnified for a loss sustained by fire, on the allegation, that the trifling loss really sustained, was fraudulent, and occasioned by the fraud or gross negligence of the assured.
The insurance was upon cloths, ready made clothing, and a tailor’s stock in trade, etc., to the amount of about four thousand four hundred dollars, and the plaintiff sues for two thousand three hundred and seventy-nine dollars and thirty-four and a half cents, the amount of the loss alleged to have been sustained by him.
It is admitted on all hands, that the store in which the plaintiff usually kept his stock, situated in Royal-street, was intentionally set on fire by somebody. It appears that the fire had been kindled in the inside, under the counter, by means of certain combustible materials, such as charcoal and brimstone matches. A smoke being discovered about ten or eleven in the evening, Mr, Boyer who had the key of a back door, succeeded in penetrating the store, while a crowd alarmed by a cry of fire, forced open the front door, and the fire was soon extinguished. The loss was trifling, and those who first entered, agree in stating, that the store was almost literally empty. The plaintiff who kept the key of the front door, was at the American Theatre in St. Charles-street, in company with his friend and former partner, for the first time, although neither of them understood English. It is true, it is not shown what the play was, but the proof of an alibi at the time the fire was discovered and for some time before, is undisputed. As soon as the play was over they proceeded to the front door of the store, in order to enter, and *342we must .suppose'that the lessee had about him the key. They found the door guarded by a city watchman, who refused them admission.
Where the claim for indemnity against loss by fire, is resisted by a charge of an attempt by the claimant to defraud the underwriters, in setting fire to his own store, and claiming losses on goods which never happened, such fraudulent intent must be shown; but it maybe shown by presumptions as well as by direct evidence, and when once established no recovery can he had.The parish judge in giving judgment against the defendants, for the amount of articles thus destroyed or damaged, assumed as the basis of his reasoning, the principle settled in a case quoted by Phillips in his treatise on insurance, (vol. 2, p. 503,) that in a claim against an insurer for' loss by fire, when the defence was, that the assured had himself set fire to the premises insured, the facts are to be as fully and completely proved as on an' indictment for arson ; and the judge concludes, that as the evidence adduced in this case, would not satisfy him if he were sitting as a juror, that the plaintiff was guilty, he is entitled to recover the amount of the loss really sustained.
"We are not disposed to question the correctness of the general principle settled in that case. But in that case the property insured, was destroyed by a peril insured against, and the allegation was, that the assured himself had set fire to the premises, and was not, therefore, entitled to indemnity for a loss really sustained. In this case, now before us, the plaintiff is charged with fraud or gross negligence, and the loss to the extent alleged by him, is denied. A very large part of the property covered by the policy, had evidently bhen removed clandestinely from the premises. When the owner has really lost the whole property for which he seeks indemnity, the presumption that he intentionally destroyed it, is much weaker than in a case where only a very insignificant amount is destroyed, and the assured persists in suing for a total loss ; and is repelled by a charge, not of arson but of an attempt to defraud the underwriters, or of gross negligence ; which fraudulent intent must be shown, but it may be shown by presumptions as well as by direct evidence, and when once established, nothing can be recovered. Ex lurpé causii non oritur actio. To sanction a different doctrine, would, id our opinion, be to encourage incendiaries by securing to them in any event, the costs of their abortive, experiments at the expense of underwriters.
*343But what are the facts of the case which tend to prove that the plaintiff intended to defraud the underwriters, and that the fire was set by him, or at least with his knowledge and connivance '
In the first place it is clearly shown, that the stock of 1 J goods had been removed, and nothing shows that they could have been taken away without the knowledge of the plaintiff. If they had been stolen, it is probable some traces of violence would have been discovered. And .what motives could thieves have had to set fire tó a small remnant of the goods 1 Why not take all 1 It is difficult to believe that a store in Royal-street, could be rifled at such a time and in such a manner, and then carefully shut up. In the next place we have the combustibles arranged under the counter in such a way as to show that' the incendiary was acquainted with the interior of the house, and had taken his time to prepare the whole plot. What other human being can be suspected to have had the slightest motive either of interest or revenge, to prompt him to so atrocious an attempt. If the design had been to injure the plaintiff, whj1" not destroy the whole stock while it was yet in the shop 1 Why select only a few miserable remnants 1 The plaintiff alone could have had any interest in the success of such an attempt, and his interest was direct; it secured his recourse upon the defendants for the whole property insured. The force of the legal maxim cui prodest ille fecit, is established by the experience of all- ages.
But the absence of the plaintiff that evening, and the proof of an alibi, might tend, under ordinary circumstances, to weaken these presumptions. He was at the St. Charles Theatre for the first time in his life. If he had a fondness for scenic representations, he would naturally have visited the Orleans Theatre. There he would have found at least a language which he understood, and those dramatic writers more congenial to his national taste. Or if he had been struck by a sudden curiosity to witness the performance of an Engligh play, he would probably have taken with him some companion who understood the'-language, and who *344could have made him acquainted at least with the plot and the principal incidents. At the Orleans Theatre, he would have been much nearer his own residence, in the event of an alarm of fire. The visit to the theatre that evening, was, apparently, a serious affair ; the arrangement to go ,was mac|e at one 0’C10C1C) p.M. and they left the shop at about five, and the chosen companion was the plaintiff’s late partner. If, on the other hand, it should be said, that they were attracted by a desire to inspect the new Theatre, to examine its arrangements and its adaptation to scenic representation, or the taste displayed in the costume of the players, it may be asked why the visit was postponed for three months after the edifice was opened to the public, and what necessity was there to set out five long acts and a farce, and to remain until nearly midnight.
So, where' the statement oftos-ses sworn to by the claimant, is witnesses, he'is thatgroundfrom recovering a-writers.16Under" Presumptions tíai evídenee'Tñ insufficient^ to convict ¡n a ■oution for arson" and yet suffi-prevent a reco-o?ry Tnsurance^ minis'1 charged with attempting tó defraud the underwriters,Although these presumptions might perhaps appear insuf-gcjent jn a criminal prosecution, if the plaintiff were on his r . r trial for arson, yet the case presents itself under the policy in a very different light. The 8th article, which points out preliminary proofs, which are required before any loss will be paid, contains the following additional condition, “ also, if there appears any fraud or false swearing, the claimant shall forfeit his claim to restitution or payment by virtue of this policy.” There is a statement in the record of §00(^s m slore at the time of the fire, sworn to by the plaintiff, showing a loss of goods to the amount of two thousand two hundred and sixty-six dollars and fifty cents. The witnesses who were the first to enter the store, when the fire was discovered, concur in disproving this statement, and on that ground alone the plaintiff would be precluded from recover>ng* R is fortunate for the honest part of the community that guilt is often detected by its own clumsy con- . . . , tnvances- to conceal itself, and that suspicions sometimes ripen into conviction by the very efforts made to stifle them.
This court is bound to pronounce clearly the grounds of ' its opinions, and the result of its convictions, &c. In this case, the plaintiff has not, in our opinion, shown himself entitled to recover any thing.
*345It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be annulled and reversed, and that ours be for the defendants, with costs in both courts.