Steinback v. Rhinelander. and read in evidence, he having, previous to his e amination, been released by the plaintiff of all claims for the premium, and the release accepted, and his general character proved to be good. Malibran stated that in April, 1800, he purchased, at Trinidad, the schooner Chance; that about the time of the purchase, Captain *Brown, master of [*271] the ship Albemarle, was there under charter to the plaintiff and consigned by him to Malibran; that Malibran advised with Captain Brown about employing the schooner, and suggested sending her with a cargo to New York, but never positively determined so to do; that Captain Brown sailed for New York before Malibran had made up his mind, as to the destination of the vessel, and without expressing any order or desire that Brown should get the vessel insured; that soon after Brown sailed, Malibran determined to send the schooner with a small cargo to the Havanna, and wrote to his correspondent at the Havanna, on the 31st May, 1800, stating "that although by the endorsed bill of lading, the schooner Chance appeared to be bound for New York, (which was done for fear of cruisers,) his orders were to the captain to go to the Havanna, and wait for further instructions; that his correspondent at Havanna must get the vessel and cargo insured, for 6000 dollars; thas the vessel had sailed on the 29th May, and that should the vessel arrive before him, at the Havanna, and any good offer appear, the correspondent was to sell both vessel and cargo." Malibran further stated, that the letter was sent by express, by land, and did not arrive until the day, or day after the arrival of the vessel, so that the insurance from Trinidad to the Havanna was saved; that the vessel and cargo were solely his property, and the vessel had no other cargo on board, than that mentioned in the invoice and bill of lading, consisting of sugars, hides, braziletto and fustic, amounting to 1,773 dollars; and both the invoice and bill of lading stated the voyage to be to New-York, and that the cargo was consigned to the plaintiff, and belonged to Malibran; that the invoice and bill of lading were on board, on the voyage, and the let Steinback v. Rhinelander. ter was signed by the captain, and was dated 27th May; that he never determined to send the vessel to New[272] York, nor was any part of the "cargo put on board with that view; that the bills of lading, &c. were made out for New-York, merely to prevent capture, to which the vessel would have been liable, in going from one Spanish port to another: that Malibran never wrote or ordered the plaintiff to effect the insurance on the vessel or cargo, and that although he wrote to the plaintiff by Captain Brown, he never mentioned the purchase of the vessel, or that he intended to send her or any vessel to the United States; that Brown was dead, and he, Malibran, was uninterested in this suit, and that he never wrote or ordered any person to insure the said vessel or cargo, from Trinidad to New-York. An affidavit of the captain made at the Havanna, on the 4th August, 1800, stated that no property was shipped on board the schooner, at Trindad, except what was specified in the bill of lading, &c. Malibran, on his cross-examination, further stated that he purchased the vessel, on the 2d April, 1800, and that she cost, with repairs, 2,110 dollars and that he had it in contemplation to send her to New York; that he wrote to his correspondent to obtain American papers, at the Havanna, for the vessel, and also sent there for the captain; that Captain Brown, sailed from Trinidad the last of April, or first of May, and that he wrote by him to Murray & Sou, and to the plaintiff, and also to the same persons, in May, by other opportunities; that the name of the plaintiff was inserted in the invoice and bill of lading, because he was his friend and correspondent; that he, Malibran, was at Trinidad, to receive such cargoes as should be sent by Murray & Son and the plaintiff, who were jointly interested in such cargoes, and he, Malibran, was also interested in them; but that Murray and Son and the plaintiff, had no interest in the schooner or her cargo. The jury found a verdict for the plaintiff for 426 dollars and 20 cents, being the whole amount of the premium. Steinback v. Rhinelander. "The second action was for the return of the pre- [*273] mium on the insurance of the, cargo, and the same evidence was given as in the first cause; it was further proved, that Captain Brown was a person in the confidence of the plaintiff; that in the plaintiff's books, Malibran was charged with the premium of insurance, and with subsequent advances to counsel, for advice respecting the vessel. The plaintiff also offered in evidence a case made by him. with the opinion of counsel, notice to produce which at the trial had been previously given to him by the defendants; but the defendants' counsel declined reading the paper on their part, and it was then read by the counsel for the plaintiff. A verdict was also found for the plaintiff, for the amount of the premium. A motion was made to set aside the verdicts, and for a new trial, on two grounds: 1. Because Malibran was an incompetent witness, and his testimony ought to have been rejected. 2. Because, admitting the evidence, the facts in the case did not entitle the plaintiff to a return of the premium. Pendleton, Hamilton and Harison, for the defendants. Colden and Hoffman, contra. THOMPSON, J. The objections stated to Malibran's competency are on the ground of interest, and because his name appears in the policy, which purports to be made by the plaintiff for account of himself, or Peter Malibran, or John Murray & Son and the plaintiff. I think, under the circumstances stated in the case, Malibran was a competent witness. It has been settled in this court, that it must be an interest in the event only, that will totally exclude a witness. Whatever objection might have been raised on the score of interest, appears to me to have been removed by the release from the plaintiff to the witness, as far, at any rate, as respected *this suit. It is said also, that as the inter- [*274] est in the vessel turns out to be Malibran's, he must be considered as the principal, and the plaintiff as his agent, Steinback v. Rhinelander. and that the principal ought not to be permitted to disaffirm the acts of his agent. Admitting this principal to be a sound one, it cannot be applied here, without assuming a fact which does not appear in the case, to wit, that the plaintiff was the agent of Malibran. No evidence whatever appears that will afford any ground to conclude that the plaintiff was either the general agent of Malibran, or that he was in any way authorized or requested to effect this insurance. On the contrary, the fact is negatived, as far as it could possibly be, by proof. Nor can I see any principle of general policy, which can be urged to exclude this witness. Because his name appears in the policy, is not, of itself, in my judgment, a sufficient objection, when, at the same time, it appears, that it was altogether unauthorized, and without his knowledge, and, as 1 consider it, by mistake, or rather through want of correct information, as to the situation of this vessel in point of interest. All these circumstances with respect to Malibran's situation were proper to urge against the credibility of the witness; but they have been decided upon by the jury, whose province it was to give them their just weight. With respect to the second objection, this, like many other cases, is one where the general rules of law seem not so much controverted, as their applicability to the case. The premium paid by the insured, and the risk which the insurer takes upon himself, are considerations each for the other. The insurer shall not be exposed to the risk, without receiving the premium; nor shall he retain the premium, which was the price of the risk, if in fact he runs no risk. The rule laid down by Lord Mansfield, in the case of Tyrie v. Fletcher, (Cowp. 666; Doug. 566,) is, that where the risk has not commenced, whether this be owing to the [*275] fault, pleasure, or will, of the insured, *the premium must be returned; and the reason assigned is, that a policy of insurance is a contract of indemnity, and if no risk is run, the consideration for the premium fails. But if the risk has once commenced, there shall be no return of Steinback v. Rhinelander. premium; and Marshall (549,) lays it down as a general rule, that if, through mistake, misinformation, or any other innocent cause, an insurance be made without any interest whatever in the thing insured, there shall be a return of premium; and, to illustrate the rule, this case is put. that if a man, supposing he has goods on board a certain ship, to the value of 1,000l. insures to that amount, but afterwards finds either that he has no goods at all on board, or has goods only to the amount of half the insurance; in the one case he shall be entitled to a return of the whole premium, in the other, to a return of a moiety. Testing the present case by those rules, I think the plaintiff is entitled to a return of premium. Although many circumstances appear somewhat obscure, and might afford grounds of suspicion of unfairness in the transaction, unaccompanied with the explanation given them. by Malibran; yet, he being considered a competent witness, and his credibility a point for the determination of the jury, whose verdict decides that full credit was due to him, we must resort to his testimony for a true solution of the case; and which, I think, must remove all doubts on the question. He states, in the most explicit terms, that the plaintiff was not his agent; that he never authorized or requested him to get the vessel or cargo insured; that the plaintiff had no interest in either; but, that the purchase was made on his own account, and that he never did send, or determine to send, her on a voyage to New York. No parol testimony appears to contradict those facts, nor is there any circumstance to render them improbable, except the bill of lading and invoice of the cargo, by which it would appear that she was intended for New York. Those papers, however, Malibran swears, were merely *colourable, [*276] and were only for the purpose of deceiving priva teers; and that the name of the plaintiff was inserted, as consignee, because he was his friend. This practice of procuring colourable papers, whether censurable or otherwise, is known to be frequent; and I do not know that it ever has been decided, that the insured was to be concluded or prejudiced thereby. There is no evidence whatever, that the VOL. III. 45 |