Steinback v. Rhinelander. intended for New-York, and would, I think, have concluded the defendants. If it lay with them to show that the plaintiff effected the insurance, without any authority; yet Malibran could, at his election, have affirmed the agency, and availed himself of the policy, equally as if he had previously made the plaintiff his agent, for omnis ratihabitio mandato æquiparatur. The risk on the vessel may, therefore, be considered as having commenced against the defendants, and there ought not to be any return or apportionment of the premium. I may add, that this conclusion appears equally inevitable, if Malibran's testimony be received, and it should be also admitted that the plaintiff acted as agent, without *authority. Neither of those question, let the deci- [*282] sion of them be either way, affect the case, as to the return of the premium, in the policy on the vessel. The defence, in either point of view, is equally solid. In the other case, that of the insurance on the cargo, the question as to the competency of Malibran's testimony, is all important, for if that was admissible, I should incline to acquiesce in the verdict. But being excluded, the plaintiff has shown no title to the premium, because he has not shown that the voyage was altered or abandoned. It lay with him to make out his case, and without that testimony, he shows nothing to entitle him to recover. The case stated for counsel which the plaintiff read on the trial, must be considered as his testimony, and not that of the defendants. The previous notice to produce that case was only for the benefit of a perusal of it, by the defendants, and did not render it incumbent on them to offer it in evidence after they had perused it. Nothing can be considered as testimony of a party, until it is offered to the court, and, in this instance, the case called for was never offered by the defendants. It was first offered by the plaintiff, and it being his testimony, it amounted to nothing more than his own declarations, and those too not under oath, and was certainly improper and inadmissible. Steinback v. Rhinelander. 1 am, therefore, of opinion, that in both cases, the verdicts ought to be set aside, and new trials awarded, for the admission of improper testimony, and because the verdicts are against evidence. Judgment for the plaintiff, in both causes.(a) (a) Mr. Duer rejects the doctrine of the principal case. In commenting upon the question, he remarks, “ Although the adoption of a voluntary insurance is necessary to render the contract valid against the principal, and proof of its adoption, to warrant the recovery of a loss against the insurer, we are not to infer that the agent who effects the policy, is at liberty to rescind his own contract upon proof either of his want of a previous authority, or of the refusal of the intended principal to ratify his act. In this, as in other cases, the agent who reclaims the premium, or resists its payment, may doubtless show that there was no property at risk, to which the insurance could have been applied, so that from this cause the policy had never attached; but the opinion that he is not permitted to invalidate the contract, by a denial of his own right to make it, is sustained by unanswerable reasons, and, as it seems to me, by controlling authorities. He who enters into a contract on behalf of another, affirms, by the very act, that he possesses the requisite authority, and if, from the defect of his authority, the contract is not obligatory on the principal, the voluntary agent, as a general rule, is personally liable. If such be the rule, even where the contract, by its general terms, is meant to charge the principal alone, it applies with peculiar force to the contract of insurance. The agent, who effects, the policy, is himself a party to the contract, and by the universal usage, is immediately liable for the payment of the premium; (1 Emerigon, ch. 5, § 3, p. 137. Pothier Traite des Assur. n. 95, 2 Valin, 33, 34;) and it would be a strange violation of principle, to permit him to discharge himself from this liability, by evidence of his own misrepresentation and concealment. Nor is this all. It is an elementary rule, that the insurer is never bound to a return of the premium, on the ground that the risks insured had not commenced, if, under any circumstances, the payment of a loss under the policy, could have been claimed from him; but a voluntary insurance, when the property meant to be covered, is actually at risk, always creates this liability on the part of the insurer, since it is always possible that the insurance may be adopted by the person for whom it was intended; and had a loss occurred, it is fair to presume that this contingency would have happened, and payment of the loss have been demanded. Hence, to permit a voluntary insurance to be rescinded, when the risks have terminated safely, would lead to manifest injustice. It would cast the risks upon the insurer, and rob him of the premium. Under such a rule, a voluntary insurance would be simply an engine of fraud-a contract to be rescinded when the property arrives, and valid only in the event of a loss. On this question there is no discrepancy in the opinions of foreign jurists. We are informed by Emerigon, that by the law of France, where goods are Steinback v. Rhinelander. insured on account of whom it may concern, there can be no return of premium, if it appears that any goods were laden, to which the insurance could have been applied. ("Si le navire arrive a bon port, on n'ecoute pas celui qui s'etant fait assurer pour compte de qui il appartient, allegue que rien n'a été chargé pour son compte, car si le navire eut peri il auroit eut le droit d'appliquer l'assurance à toute marchandize dont il eût montre le connoissement." 1 Emerig. 322, ch. 11, § 4.) Pothier remarks that the rule by which the agent, who effects the policy, is made responsible for the payment of the premium, applies, with the strongest reason, to the case of an agent who is disavowed by those on whose behalf he had assumed to act. (A plus forte raison doivent ils (les commissionaires) etré obligés en leur nom lors qu'ils sont désavoués par ceux au nom desquels ils ont contracté. Traité du Cont. d'assur. 95.) Benecke explicitly states, that by the general law of Europe, an agent who, in effecting the policy, had omitted to disclose to the underwriters, that he had no authority to act, is never permitted to reclaim the premium he had stipulated to pay. Nor have we any reason to suppose that a different rule prevails in England. On the contrary, the cases to which I shall soon have occasion to advert, in which it was held that the person in whose behalf a voluntary insurance has been effected, may adopt the contract, not only after the happening, but even with the knowledge of a loss, necessarily imply that the insurer, whether the contract be adopted or disclaimed, is entitled to retain the stipulated premium. This was clearly perceived, and is distinctly stated by some of the judges; nor upon any other supposition, can these decisions be reasonably defended. (These cases are Lucena v Crawford Routh v. Thompson, 3 East, 274; and Hagedorn v. Oliverson, 2 M. & S. 485.) To these remarks and authorities, there stands opposed a single decision of the Supreme Court of New York; but as this opinion was not unanimous, was made at an early period, when the law of insurance was yet imperfectly understood, is not supported by argument or analogy, and is entirely repugnant to the general law of commercial Europe, it is not probable, that its authority, as a precedent, would now be admitted, even by the tribunals of the state in which it was pronounced. (Steinback v. Rhinelander, 3 Johns. Cas. 269; 2 Duer on Ins. 141, et seq. § 22, and notes II. and III. See also id. p. 174176, where Routh v. Thompson, 13 East, 289, Hagedorn v. Oliverson, 2 Maule & Selwyn, 485, Fleming v. Fuirhaven Ins. Co., 5 Metcalf, 192, and McCullough v. Royal Ex. Ins. Co., 3 Campbell, 406, are commented on, and shown to be at variance with the principle of Steinback v. Rhinelander.) As to the description of the assured, see 1 Phillips on Ins. ed. 1840, p. 150, et seq. and refs. ; 2 Duer on Ins. p. 10, § 9, and refs. As to the commencement of the risk, 1 Phillips on Ins. ed 1840, p. 436, et seq. and refs. Upon the return of the premium, 2 Phillips on Ins. ed. 1840, p. 526, et seq. ; supra, vol. 1, p. 313, n. (a) to Delavigne v. United Ins. Co.; Waters v. Allen, 5 Hill, 421. Upon the evidence of Steinback, 2 Phillips on Ins. ed. 1840, p. 659; 2 Phil. Ev., Cow. & Hill's ed. 72, 263. Jackson v. Laroway. [*283) *JACKSON, ex dem. LEWIS and others, against LAROWAY. A will executed in 1723, and which had been proved by the witnesses in 1733 and 1744, and recorded, but not in a manner authorized by law, was allowed to be read in evidence, on the trial of an action of ejectment, in 1801 as an ancient deed; though actual possession did not follow and accompany the will, that being explained by the peculiar situation of the property in question; and other circumstances shown, to raise a presump. tion of the existence and genuineness of the will. The general rule in reference to proof of ancient deeds is that a deed appearing to be of the age of thirty years, may be given in evidence, without proof of its execution, if the possession be shown to have accompanied it, or where no possession has accompanied it, if such account be given of the deed, as may be reasonably expected under all the circumstances of the case, and will afford the presumption that it is genuine. Per Radcliff, J. Livingston and Thompson, J., concurring. Kent, J., diss. THIS was an action of ejectment, for lands in the town of Windham, in the county of Greene, late part of the county of Ulster. The plaintiff claimed title under a patent granted to Johannis Hardenbergh, Leonard Lewis and others, dated the 23d April, 1708. After producing the patent, he proved that Leonard Lewis, the patentee, under whom he claimed, died upwards of sixty years before the trial. He then offered in evidence a writing purporting to be the original will of Leonard Lewis, and to have been duly executed in the presence of three witnesses, bearing date the 20th February, 1723, upon which there appeared several endorsements, as follows: 1. A certificate of Johannis Van Kleeck, a justice of the peace, of the former colony of New York, dated the 23d August, 1733, stating that one of the witnesses to the will had appeared before him, and deposed to the execution of the will, by the testator, as his voluntary act and deed; 2. A certificate of Jacobus Ter Bos, one of the judges of the court of common pleas of Dutchess county, dated the 9th Jackson v. Laroway. October 1733, stating the like proof before him, by another of the subscribing witnesses; 3. A certificate of the clerk of Dutchess county, dated the 21st July, 1735, that the will was recorded in his office; 4. A certificate, dated the 16th May, 1744, signed by a judge and two assistant justices of the court of common pleas of Dutchess county, and also by the clerk of the same court, stating, that the will had been proved before them, in open court, by the two witnesses above mentioned, who deposed, that they saw the testator sign, seal publish, and declare the same, as his last will; that he was of sound mind; that they subscribed their names thereto, as witnesses, and that they also saw the [*284] other witness subscribe his name thereto as such. The plaintiff also offered to prove the hand-writing of the clerks to the endorsements above mentioned, and of the judge who signed the endorsement certifying the proof of the will in open court, and contended that under those circumstances, the will ought to be received as an ancient deed. It was objected to by the defendant, and overruled by the judge. The plaintiff then deduced a title derived from the heir at law of Leonard Lewis, and proved, that the premises were occupied, about twenty years before the trial, by one Jan Laroway, who died in possession, about nine or ten years ago, and that the defendant held the same possession; and, in order to prove that the premises were comprehended within the patent above mentioned, he offered in evidence. an indenture, bearing date the 1st June, 1787, executed by William Cockburn, as attorney for the then principal proprietors, under the patentees mentioned in the patent, (except the representatives of Leonard Lewis,) on the one part, and by Jan Laroway and others, on the other part, by which indenture, Jan Laroway acknowledged that the premises lay within the patent, and accepted a confirmation or conveyance from the patentees, who thereby grauted the same to him and his heirs, reserving certain mines and minerals, and the rent of three bushels of wheat, to be paid by Jan Laroway and the |