
    Newson’s Adm’r. vs. Douglass. Douglass vs. Newson’s Adm’r.
    June, 1826.
    In an action of assumpsit by C, claiming to be tlie owner of tbe property insured, against J), to recover tbe amount received by D, upon certain policies of insurance effected in bis name, for account of whom they might concern. — Held, that it was competent for D to show that tbe policies were effected by him as tbe agent of a third person, and that tbe letters of that person to D, directing the insurances, were admissible evidence of that fact.
    The words, “whom it may concern,” in a policy of insurance, are technical, and are understood to mean not any and every body who may chance to have an interest in tbe thing insured, but such person only as is in tbe the contemplation of tbe contract. They suppose an agency, and look solely to tbe principal in whose behalf, or on whose account the agent acts. Such principal is tbe person in tbe contemplation of the contract, and is tbe one whom it alone concerns; and his existence may be proved by extrinsic evidence.
    
      No person can avail himself of a policy of insurance, not containing the general clause '‘whom it may concern,” or one of similar import, but those named in the policy as the parties insured, or on whose account it is expressed to be made. But a policy in the name of one, with this general clause, will cover the interest of any person for whose benefit it is intended when effected, and who either previously authorises it, or subsequently adopts it — subsequent adoption in such a case being equivalent to a prior order for the insurance.
    Where A authorises B to effect an insurance for him — or B, without authority, designs to insure for A, and in either case B directs a sole agent to insure in such sub-agent’s name, with the general clause, the policy will enure to A’s benefit, although his interest was not known to the sub-agent. or to the underwriters, in like manner as it would have done had it been immediately effected by B himself.
    The plaintiff C, claiming title to the property insured under a bill of sale to him from the principal of the defendant D — Held, that it was not competent for D to show that such bill of sale was intended by his principal to defraud his creditors, however unfair C’s conduct may have been ia relation to it.
    The sworn certificate of the captain of a vessel, insured by an agent, of the disbursements of the agent upon the vessel, is not evidence of such disbursements, in an action, against the agent by the principal, to recover the amount received by the agent upon the insurance! but the captain himself should be produced.
    Interest is recoverable as of right upon contracts in writing to pay money upon a day certain, as upon bills of exchange or promissory notes, or oti contracts for the payment of interest, or where the money claimed has been actually used, and upon bonds, &c. but in other cases it is a question entirely for the jury, to be decided according to the equity and justice between the parties, on a consideration of all the circumstances of the particular case as disclosed at the trial.
    After the opinion of the court was delivered, and before judgment was entered, the appellant was permitted to dismiss his appeal.
    Cross Appeals from Baltimore County Court. This was an action of assumpsit for money paid, laid out and expended; for money had and received, and for money lent and advanced. The defendant (Douglass,) pleaded non assumpsit, and issue was joined.
    1. At the trial the plaintiff, (Newson’s administrator,) off fered in evidence, that his intestate was the owner of the ship Mohawk at the time of his death; and that while such ownership continued in the representatives of the intestate, the defendant sent to the offices of The Baltimore Insurance Company, and The Patapsco Insurance Company, the following orders for insurance. “George Douglass wants insurance for account of whom it may concern, on ship Mohawk and cargo, James T. Harding master, at and from hence to Port-auPrince, against all risk. Say on vessel, valued thereat, $6000; on cargo $20,000. The Mohawk sails under a certificate of American ownership — is well fitted and found, and the captain a good officer. She will probably sail to day. In case of loss the amount to be paid to me. What premium, secured by R. H. and IV. Douglass? That the said offices upon this order entered into the policies of insurance, which he also offered in evidence. That by The Baltimore Insurance Company was executed on the 26th of August 1817, whereby the said Company insured “George Douglass, for account of whom it may concern, as well in his own name, as for and in the name and names of all and every other person or persons to whom the same doth or shall appertain, in whole or in part, and every ol them,” &c at and from Baltimore to Port-au-Prince, upon the cargo of the ship Mohawk, to the amount of $18,000 at a premium of 2J per cent. Anolher policy by the same company was executed on the same day, and in like manner and form as above mentioned, on the ship Mohatok, to the amount of $2,000 at a like premium. And the other policy by The Palapsco Insurance Company was executed on the same day, and in like form and manner, as above mentioned, on the ship Mohawk, to the amount of 4,000 at the like premium. The plaintiff further proved, that while said policies were in force, the said. ship was lost by one of the dangers insured against, and that on said loss the said insurance companies on the 31st of December 1817, and 7th of March 1818, paid to the defendant, on account of said policies, the sum of $5,595 38. The defendant then, for the purpose of proving, that in effecting said policies of insurance the defendant acted as the agent and on account of one Archibald Kane, who it was admitted was dead, offered to read in evidence the following letters from said Kane to the defendant, viz. One dated at Port-au-Prince the 28th of June, 1817. “The sole object of this letter is to request you will make insurance for me to the amount of twenty thousand dollars, as follows: ten thousand dollars on coffee, valuing the same at fifteen dollars pr. ewi. on Logwood three thousand dollars, valuing the same at twenty-five dollars per ton; and on the hull of the ship Mohawk, seven thousand dollars, on board the ship Mohawk, Harding, master, at and from Port-au-Prince to Baltimore. The Mohawk will sail in ten days.” Another dated at Portau-Prince, the 28th of June 1817. “The enclosed letter for insurance let it have your earliest attention. The ship Mohawk was formerly the La Franchise, under the Haytian flag, but during her last voyage to Neto-York, she obtained papers enabling her to sail under the American flag, though she did not get them early enough to clear out from New-York for this place. She is a fine ship, almost new, and coppered to high ballast mark. She was built at New Bedford, and is six years old. My object, on her arrival at Baltimore, is to sell or exchange her for a good schooner of about 800 bis; say, that will stow about 130 a 150 wt. coffee in bags, to be kept as a regular trader on my own account between this and Baltimore. I do not care much about her being coppered, as she never should lay here long enough to be injured by worms. The ship is too large for my purpose, and her foreign duties and charges makes it ruinous. Is it not possible for you to make the exchange for me, on almost any terms, with some of your ship-builders? The Mohawk would do well to load for Cadiz, and there sell her. She is well found in every thing. Will you, my dear sir, sound, and see if any arrangement can be made on her arrival? She has cost me, first and last, $20,000, and I declare I should be willing to exchange her for a schooner value $5000. I shall write you fully by her, in the meanwhile you could make inquiries, &c. I shall do a great deal of business with you hereafter. Since the unfortunate failure ol my northern friends, I shall do every thing with you? and I beg particularly that all our affairs may be kept snug from every one. I have lost several fortunes in supporting my friends, and I must now devote my time and attention to my own interest. With you, you will always find me punctual and correct, and with your good attention to my interest in Baltimore, I flatter myself I shall soon look up. I write my friend by this conveyance that I shall merely send the Mohawk to you with wood, to return with lumber. I beg you will keep me regularly informed of your market for German goods. You know the kind fit for this market. Provisions and Yankee cargoes of fish are tumbling in from the N and Eastern states, and markets falling. X hope ihe Mohawk will sail in all next week.” Another letter, dated at Port-au-Prince, the 5th .of July, 3 817. “Inclosed you have invoice and bill lading of coffee and logwood, shipped on board the Mohawk, Harding, master, amounting in our currency to §21,810 72, which you will dispose of when you think proper. I have, determined the Mohawk shall return, having engaged with President Pelion to furnish him with a quantity of pitch pine timber and boards, as per his letter herewith, and to which I ask your best attention. Capt. Harding is the stepson of my deceased friend C apt. Neivson, who died here last month, and to him I shall continue the command of the ship. lie will engage a friend of his as mate at Neio-York. On the arrival of the ship at Baltimore you will discharge the crew, the amount due them, if they arrive in all this month, will be a little under one thousand dollars, as per statement herewith. I wish you to take complete charge of the vessel ia unloading and loading her, as Capt. Harding must go on to New-York to regulate some affairs, and will return to Baltimore in about teu day's. I am well aware of your zeal, attention and economy.', and I trust the Mohawk, will not be over twenty days in port. On her return she will have 10 sailors and an officer, and I wish you to put in provisions for the crew for only 60 days, and small stores for the cabin, say to amount of 60 or §70. Capt. Harding is in my full confidence, and will inform ymu his object in going on to New-York. The vessel wants nothing to make her voyage back here, excepting a few day’s caulking. On her arrival here I can put her in order, having the government store and arsenal rather in my favour. I leave every thing to your good management. When the 100 feet timber and boards are in, and the articles contained in my note, should she not be full, fill her up with white pine boards. I shall confidently look for her in this port in 60 days from this dale. The return cargo to be insured out to Port-au-Prince; the vessel also to he estimated at six thousand, dollars.” Thou follow the invoice signed by Harding,..ia\A the letter of president Petion, both dated the 4th of July 1817. Another letter, dated at Port-au-Prince the 9th of July 1817. “Inclosed you have duplicate for insurance on the Mohawk and cargo, which vessel sailed on Saturday evening the 5th inst. (this is Monday,) to which I beg your attention. I also inclose duplicate invoice and bill lading of her cargo. I have nothing further to add, only a full confirmation of my respects by her. Hoping soon to hear from you, and that you will keep all my affairs snug between us.” “Note for return cargo, ship Mohawk, Harding, master, to be shipped by Mr. George Douglass on my account and risk, under full insurance, to Port-auPrince, 1000 barrels,” &c. Another letter, dated at Port-auPrince the 9th of July, 1817. “Your highly esteemed favour of 21st of June was handed me this morning by Mr. Crocket. Since my respects pr. Mohawk many herrings and soap have arrived, and as the herrings were intended for gover’t. they do. not now want them; or in other words, I think I can do better than to furnish them. In the event of my order per Mohawk not having been acted upon, the enclosed note for her return cargo you will please allow to take its place. The India goods ¿nd hkfs. I shall leave entirely to your good judgment, as you well know what this market is. I have merely stated the kind that are now in demand, and as no arrivals from England, can be expected till Novr. or Deer. I calculate this will do well. The lumber for the president, as well as his tables, as stated in his letter enclosed to you pr. Mohaiok, will have, I am sure, your best attention. If I had funds in your hands I would add considerably to the India goods. You may rest assured, my dear sir, should my funds not amount to my order, which I suspect they will not by several thousand dollars, you shall be in full remittances within 90 days from their sailing from your port. I do not expect that you will be willing to advance more, especially after the fate of my northern friends, but I can only say, •ft. Kane is unexceptionable for all his engagements. We have nothing new from France respecting this Island. This letter goes by the governor Selby for New York, which I hope may be in time to stop the herrings and soap.” To the reading of these letters the plaintiff objected; but the Court, [fftrehcr, Ch. J. and Hanson, and Ward, A. J.j overruled the objection, and permitted them to go to the jury. The plaintiff excepted.
    2. The defendant then offered to read in evidence the following certificate, given by James T. Harding, for the purpose of showing the amount of disbursements paid by the defendant on account of the ship Mohawk, in order to have said disbursements deducted from the claim of the plaintiff, viz. “I James T. Harding, late master of the ship Mohawk, do hereby certify, that Mr. George Douglass’ bill of disbursements against the ship Mohawk, when she left Baltimore in August 1817, amounted to twenty-eight hundred and ten dollars and sixty-seven cents, and that the same was just and correct. New- York, 9th October, 1824, James T. Harding.”
    
    State of New-York. City of New-York, Set. James T. Harding of the said city, being duly sworn, doth depose and say, that the matters of fact set forth in the above certificate, to which he hath subscribed his name, is in all respects just arid true; and further says not. James T. Harding.
    
    
      ■ Sworn to this 18th of October 1824, before me,
    
      John Hildreth, Commr.
    To the reading of which paper the plaintiff objected, there being no proof that Harding was dead; but the court overruled the objection, and permitted the paper to be read in evidence to the jury. The plaintiff excepted.
    
      3. The plaintiff then prayed the court’s opinion and instruction to the jury, that if they believed the plaintiff entitled to recover the amount received by the defendant on the policies stated iri the preceding bills of exceptions, deducting the disbursements paid by the defendant on account of the ship insured by said policies, that then the plaintiff was also entitled to be allowed legal interest on said amount. Which prayer the Court, [Hrcher, Ch J. and Ward, A. J.] refused to give, being of opinion, and so instructing the jury, that whether interest should be allowed or not, was a question to be decided by them, and not by the court. The plaintiff excepted.
    4. The plaintiff, in order to support the issue on his part, gave evidence, that the defendant handed into the Baltimore 
      
      Insurance Company, and Patapsco Insurance Company, two incorporated companies in the city of Baltimore, the orders of insurance stated in the plaintiff’s first bill of exceptions, which were respectively accepted, and that the policies, also set forth in the first bill of exceptions of the plaintiff, were executed in due form by the said companies respectively. And further gave in evidence, that the said ship Mohawk, mentioned in the said policies of insurance, was the property of Samuel Newson, the plaintiff’s intestate; and that the said ship departed and set sail from the port of Baltimore, on the voyage.insured, on the-day of September, in the year 1817, and in the prosecution of that voyage was wholly lost by the perils of the sea. He further gave in evidence, that the defendant applied to the said insurance companies, and received from them the amounts respectively insured by the policies aforesaid, after deducting therefrom the usual charges. And further read in evidence'the depositions, returned under ihe commission issued in this cause to take testimony, and the following exhibit No. 1.. “Know all men by these presents, that I Archibald Kane, of the state of New-York, a native born citizen of the United States, (but at present in the city of Port-au-Prince, island of Saint Domingo) for and in consideration of the sum of five thousand dollars to me in hand paid, at and before the sealing and delivery of these presents, by Samuel Newson, ship master of the city of New- York, have granted, bargained and sold, and by these presents do grant, bargain and sell, unto the said Samuel Newson, his executors, administrators and assigns, the whole of the good ship or vessel called The La Franchise, of the burthen of three hundred and sixty tons, or thereabouts, together with all her masts, sails, yards, anchors, cables, ropes, cords, boats, oars and furniture, to the said ship belonging or in anywise appertaining. To have and to hold the said ship or vessel unto him the said Samuel Newson, his executors, administrators and assigns forever, as his and their own proper goods, and to and for his and their own proper use and uses forever. And the said Archibald Kane doth hereby for himself, his heirs, executors and administrators, covenant, promise, grant and agree, to and with the said Samuel Newson, his executors, administrators and assigns, that the said Archibald 
      
      Kane, at the time of the sealing and delivery of these presents, "is the trae and lawful owner of the said ship or vessel, and premises, hereby granted, bargained and sold, or mentioned, or intended so to be, unto the said Samuel Neivson, his executors, administrators and assigns, as aforesaid; and that he the said Archibald Kane, at the time of the sealing and delivery here - of, hath in himself full power and good authority in law to grant, bargain and sell, the said ship or vessel, and premises above bargained and sold, or mentioned, or intended so to he, unto the said Samuel Ne.wson, his executors, administrators and assigns, in maimer aforesaid; and also that it shall and may bo lawful to and for the said Samuel Newson, his executors, administrators and assigns, from time to time, and at all times here,after, quietly and peaceably to have, hold, possess and enjoy, the said ship or vessel, and all other the premises hereby granted or mentioned, or intended so to be, without the let, trouble, denial, molestation, hindrance or disturbance, whatsoever, of him the said Archibald Kane, his executors, administrators or assigns, or of any other person or persons whatsoever, lawfully claiming, orto claim by, from, or under him, them, or any pf them, and that freed and discharged of and from all former and other bargains, sales and incumbrances, made, done or committed, by him the said Archibald Kane, or any other person or persons by his order, consent, privity or procurement In witness whereoi I have hereunto set my hand and seal this twenty-fourth day of September, in the year of our Lord one thousand eight hundred and sixteen.
    
      Archd. Kane, (Seal.)
    Sealed and delivered in presence of,
    
      II. TVainwright, lames T. liar ding A
    
    
      “James T. Ilarding, of the city of New-York, deposeth and saith as follows: To the first interrogatory this deponent saith that he knows the parties, plaintiff and defendant. That he knew the plaintiff ten or twelve years since slightly, and that he knew the defendant in the year,1817, since which time he has had but little knowledge of him. To the second interrogatory this deponent saith, that he knew both Archibald Kane and Samuel Newson; that the said Samuel Newson-was the step-father of the witness. That he first knew Archibald 
      
      Kane about twelve years since, and was acquainted with him up to about July 1817, and that he has known Samuel Newson since he the witness was a child. That they arc both dead. Kane died at Port-au-Prince in September 1817, and Newson died at Port-au-Prince in June in the same year. To the third interrogatory this deponent saith, that he knows the handwriting of Archibald Kane, has seen him write, and has received letters from him. The witness having looked upon the paper, marked exhibit No. 1, saith that the signature to the said paper, “Archd. Katie,” is in the proper handwriting of the said Archibald Kane. To the fourth interrogatory this deponent saith, that at the time of the date of the said paper marked exhibit No. 1, the said Archibald Kane resided at Port-auPrince, and the said Samuel Netcson was a ship master, sailing out of the port of New-Yorle; that he does not know whether Newson was at Port-au-Prince at the time the said paper bears date, or not. That Archibald Kane had resided at Port-au-Prince several years previous to 1817, cannot say how many, and that Newsoti never regularly resided at Portau-Prince but traded backwards and forwards between that place and New-York. That both Archibald Kane and Samuel Newson were, as deponent believes, citizens of the United States at the time the said paper bears date; he knows nothing to the contrary; that the said Archibald Kane and Samuel Newson, or either of them, were not connected with any commercial house in the United States to this deponent’s knowledge. To the fifth interrogatory this deponent saith, that the signature of James T. Harding, to the paper marked exhibit No. 1, is the true signature of the witness; that he is acquainted with the handwriting of H. Wainwright, has seen liim write, has not corresponded with him, but has received •notes and bills from him. To the sixth interrogatory this deponent, having looked upon the said paper marked exhibit No. 1, saith that the signatures to the said paper are in the proper handwriting of him the said witness, and of II. Wainwright the other subscribing witness. To the seventh interrogatory the deponent saith, that he is one of the attesting witnesses to the- said paper marked No. 1, and did subscribe his name thereto as such, and did see the other subscribing witness sign the same, and that he did see the said Archibald Kane sign, seal, and deliver the said paper 'writing as his act and deed, in the latter end of January,' or beginning of February 1817, at the house of the said Archibald Kane in Port-au-Prince. To the eighth interrogatory this deponent saith, that to the best, of his knowledge and belief the said ship, named and described in the said paper marked exhibit No. 1, belonged, in the months of August and September 1817, and up to the time of her loss, to the said Samuel Newson, or rather to his representatives. That at the time the said paper bears date, the name of the said ship was La Franchise; that the name of the said ship was changed at New- York in the latter end of December 1816, to Mohawk, by the said Samuel Newson, as the witness presumes; all he knows is, that the name Mohawk was painted on her stern. Witness does not know the reason of changing her name, the said ship had previously sailed under Haytien colours. The witness sailed from Baltimore on board the said ship in August 1817, for Port-au-Prince, and the said ship was wrecked and totally lost on Crooked Island on the tenth day of September in that year. The witness says, that the defendant told him the said ship was insured for the said last mentioned voyage for six thousand dollars; that the said ship cleared out by the name of Mohawk on her last voyage. To the ninth interrogatory the deponent saith, that the said ship was cleared out on her last voyage from the United Slates by the defendant. That on the death of the said Samuel Newson, who was captain of the said ship, this deponent, being the first officer, took command of the said ship with the assent of the said Archibald Kane, for the purpose of making a voyage from Port-au-Prince to Baltimore, and back. This deponent arrived at Baltimore in said slyp, as master, and sailed again on her last voyage for Port-au-Prince, without any new appointment as such master. The witness shipped the seamen lor the said last voyage under the direction of a notary. To the cross interrogatories the witness says, that being sworn on the Holy Evangelists of Almighty God, he is willing, truly and faithfully, to answer the interrógalo ries put by the defendant To the first cross interrogatory ihe deponent saith, that the said ship did pot make any Voyage from Port-au-Prince to New-York in the year 1817; but the said ship did make a voyage from Port-au-Prince td New-York in 1S16, at which time witness ivas mate or first officer of said ship, under the said Samuel Neioson as captain. The witness does not know to whom the said ship belonged at that time. She was sometimes called the President’s ship, (meaning Petion’s ship,) and sometimes Mr. Kane’s ship; he presumes she was Mr. Kane’s ship. To the second cross interrogatory the deponent saith, that the said ship was loaded at Port-au-Prince in the year 18IG, by the said Archibald Kane, and consigned to John Kane of Neio-York, brother to the said Archibald Kane; that no freight was ever paid or demanded on the goods of A. Kane, to the knowledge of the witness. To the third cross interrogatory the deponent saith, Archibald Kane and Samuel Newson were concerned, together for several years, and that the said Samuel Newson sailed in the employ of the said Archibald Kane about a year previous to the year 1817; that he presumes that the said Samuel Newson enjoyed the confidence of the said Archibald Kane during that time. To the fourth cross interrogatory the deponent saith, that he understood and believed that the said ship belonged to Archibald Kane during the time she was called La Franchise, but the witness believes she belonged to Samuel Newson after she was called the Mohawk. The witness considers that Samuel Newson was in the employ of Archibald Kane, while the said ship was under Hay lien colours, but cannot say whether New-son was in the employ of Kane after the name of the said ship was changed to Mohawk; he has no belief on the subject. The witness says, that the said ship La Franchise did enter, unload and load, in Ncw-York, in 1816, and that captain Newson did obtain a certificate of American ownership of the said vessel, •and called her the Mohawk, To the fifth cross interrogatory ' the deponent saith, that he continued in the same capacity, as first officer of the said ship, "until her arrival at Port-au-Prince, and up to the time of captain Newson’s death; that the said ship arrived at Port-au-Prince on the 18th day of January 1817, and captain Newson died on the 5th of June following. Witness says he has heard captain Newson say that the Mohawk belonged to him, but never heard him say any thing on the subject of the payment of the consideration — he believes Captain Newson was able to. buy such a ship. Witness knows nothing about A. Kane’s being the rightful owner of said ship, or of her being covered by captain Neioson for A. Kane, and bad no means of ascertaining what the general opinion was at Port-au~ Prince, as he had but little intercourse with the shore. She was generally called The President’s Ship, both before and after her name was changed to Mohawk. The witness never heard captain Newson, in speaking of said ship Mohawk, speak of her as Mr. Kane’s ship; but he did hear captain New-son say, that if he could settle his affairs with the said Archibald Kane, he would return home with the said ship, and that he believed Archibald Kane was playing the fool with him, and would not furnish him a cargo. Witness never heard Archibald Kane speak of the Mohawk as his ship; but after -the death of captain Newson, the said vessel being then loading for New- York, Kane said he was acquainted with captain New-son’s affairs, and changed the destination of the ship to Baltimore, whei'e ho said he would furnish a cargo for Port-auPrince, and thence send her to Europe where she could be gold. The witness says, that Archibald Kane instructed him to go on to New-York to obtain authority from the administrators of Samuel Newson to dispose of the said ship; and that after the arrival of the said ship at Baltimore, he the witness did go on to New-York for that purpose, hut learnt that no administrators had been appointed. Witness says that captain: Newson did draw the money, to pay the crew of the said ship Mohawk, from Archibald Kane, and that he the witness also did the same after his appointment to the command of the said ship; as to his appointment to the command of the said ship, the witness refers to wliat he has already said on that subject in his direct examination. That at the time witness took the command of the said ship, he had no particular conversation with the said Archibald Kane, hut that Kane promised to allow witness sixty dollars per month wages. The witness says that Kane loaded the said ship Mohawk with logwood and coffee, consigned to G. Douglass of Baltimore, the freight of which was, as witness believes, stated per bill of lading to have beea paid at Port-au-Prince. That said Kane did not pay, or promise to pay, any freight to witness, but said that when the vessel returned he would close up and settle captain Neioson’s accounts. That he the witness did sign the bills of lading without asking any questions concerning freight; Mr. Kane saying the bill of lading was filled up as previously mentioned to satisfy Mr. Douglass. The witness says that Mr. Kane did not mention to him in confidence any thing relating to his business, or his creditors in New-York, or to the situation of his property. That the said Archibald Kane did not charge witness to go on tp New-York, immediately after his arrival at Baltimore. for the purpose of preventing his creditors from attaching or molesting the ship or eargo at Baltimore; that witness did go from Baltimore to Neto-York, but for the purpose previously mentioned. The witness says he has no recollection of a portage bill having been sent to G. Douglass by A. Kane; but he does recollect, that on his arrival at Baltimore, he made out a portage bill, in which, as he believes, the wages of captain New-son were not inserted, his own wages as mate and captain, and the wages of the crew, were included in the said portage bill. Witness recollects that A. Kane did say he would give orders to G. Douglass to páy the portage bill at Baltimore, but does not recollect that he said any thing further on this subject tp the witness or the.crew. He believes he did ask Mr. Douglass for the amount of the portage bill shortly after deponent’s ■arrival at Baltimore. The witness has no recollection of having stated to Mr. Douglass that A. Kane had made a mistake in calculating the wages of captain Newson, nor has he any recollection of the amount received of Mr. Douglass to pay off the crew. Witness-says that he had no bargain or agreement .with A. Kane on the subject of cabin stores. That he recollects to have had some' altercation with Mr. Douglass as to the amount, and recollects to have paid a part of it himself to Mr. Chappell, but he has no particular recollection ol the amount thus paid by him. Witness says he has no recollection of mentioning to Mr. Douglass that Mr. Kane had become d — n stingy and close in sailing his vessels. The witness had no understanding with Mr. Kane about the privilege of an- adventure in the Mohawk free of freight, nor does he recollect any cortver-sation with Mr. Douglass .on .that subject. Witness says that af~ ter the said vessel was loaded at Baltimore by G. Douglass, and consigned to A. Kane, he the witness did sign bills of lading, in which the freight was stated as having been paid at Baltimore, the witness considering that all the accoufits would be arranged by Mr. Kane at Port-au-Prince; that neither Mr. Doúglass, nor any one else, paid the witness the freight, or any part of it; that the witness signed the bills of lading without asking any questions, for the reasons previously given. Witness says, that at the time of witnessing the said paper marked exhibit No. 1, the parties thereto were present; that neither of the parties stated to the witness the purport of that paper, and that he did not at that time, nor at any other time, witness any other paper of the same kind or appearance. The witness does not know that he ever did witness a counter bill of sale of the said ship La Franchise, or Mohawk, from Samuel Newson to Archibald Kane. Witness never understood from Archibald Kañe whether he had or had not made a bona fide sale of the said ship La Franchise, or Mohawk, to Samuel Newson.” Whereupon the defendant, in support of the issue on his part, offered in evidence the letters stated in the • plaintiff’s first exception, written by Archibald Kane to the defendant, respectively bearing date the 28th of June and nth of July 1817, to show, that in making the said policies of insurance he was acting as the agent of the said Archibald Kane. And further offered in evidence the depositions relumed under the commission in this cause. The defendant then moved the court to instruct the jury, that if they shall be of opinion that the bill of sale offered in evidence by the plaintiff, as proved under the commission aforesaid, was a merely fictitious instrument, without any consideration really paid therefor, that the sale was merely colourable, and intended to cover the interest of A. Kune iti the Mohawk, under the name of Samuel Neivson, and that notwithstanding such pretended sale the property of the vessel in the understanding, both of Newson and Kane, remained in the said Kane at the time of the insurance effected by the defendant, and at the time of the loss of the vessel, that then the plaintiff is not entitled to recover in this, action. And the defendant further moved the court to instruct the jury, that if the jury shall be of opinion, that the bill of sale aforesaid frop 
      J]_. Kane to Samuel Newson, is a genuine instrument, and that the sale of the vessel by Kane to Newson, was a valid and ■iona fide sale, yet if they shall also be of the opinion that the in,-Surance effected by the defendant with the aforesaid insurance ■.companies, as set forth in the evidence, were effected by the defendant, as the agent and for the benefit of the said Kan& done, and that neither the said Newson, nor his representa* tives, nor any interest of their’s, real or supposed, was within 4he contemplation either of the defendant, the agent, or of the said insurance companies, at the time the said insurances were effected, nor was intended by them, or either of them, to bo .covered by the said policy, that then the plaintiff is not entitled to recover in this action. Both of which instructions the Court [Archer Ch. J. a;nd Ward, A. J.] refused to give; but were of ■«pinion, and so instructed the jury, that if they should believe-that the said bill of sale was executed by the said Archibald Kane, that then the same was good and legal evidence of title in the said Samuel Neioson, and his representatives, and that no testimony was admissible to prove that said bill of sale wad collusive and fictitious, and intended to defraud the creditors of the said Archibald Kane. The defendant excepted. Verdict for the plaintiff, and damages assessed to $2,784 71. Judgment on the verdict for $10,000 current money, the damages laid in the declaration, and costs; to be released on payment of the damages assessed by the juiy, with interest, &e.
    The plaintiff and defendant both appealed to this court, -where both appeals were argued together before Buchanan, Ch. J. and Earle and Stephen, J.
    
      Kennedy, for Newson’s Adm’r. on the appeal by him.
    He contended, 1. That the court below erred in admitting in evidence the letters from Kane to the defendant, in the manner stated in the first bill of exceptions, for the purpose of showing, that the policies of insurance were intended for the benefit of Kane, and that the defendant acted for Kane alone, in effecting them, and not for Newson — because the same was contradictory to the terms of the policies, and the bill of sale from Kane to Newson.
    
    2, That the court below also erred iu admitting the certifi«ate of James T Harding, master of the ship Mohawk, in her last voyage, as competent evidence of the amount of disbursements made on account of said ship by the defendant, because Harding was alive, and was examined as a witness in the cause, and the said certificate was given by him after the commission which issued to take testimony was closed — and there was no privity between him and the plaintiff.
    3. That the court below further erred in allowing such dis - bursements, so proved, to be deducted by the jury from the amount of money received by the defendant from the insurance offices, on account of the said ship, and to which the plaintiff was entitled, because the defendant, by law, ought not to have been allowed for such disbursements, eveii if the same had been duly proved.
    4. The court below erred in leaving to the jury the question of the plaintiff's right to recover interest, as a question of fact; tmd ought to have instructed them that the plaintiff was entitled to interest from the commencement of the action.
    5. The court below erred in not directing the jury, if they found the execution of the bill of sale, to give a verdict for the plaintiff for the whole amount they should find the defendant received on account of the ship Mohawk, together with interest as aforesaid, deducting only the amount of the premium notes of the defendant; and that this court ought now to render the judgment which the court below should have given, it being mere matter of computation from the facts found by the jury, and admitted upon the record; and that there would therefore be no occasion for a venire de novo.
    
    1. The insurance of the vessel at the two offices, which is the only question in controversy, must enure to the benefit of Newson’s representatives; and the letters of Kane were inadmissible in evidence while the ownership of the vessel was in News on’s representatives. It was not competent for the defendant to deny such ownership. He acted as the agent for New-son’s representatives; and the insurance was made for lohom it might concern. No parol evidence was admissible to show that any other person was interested but Newson’s representatives; and it was only necessary to show that the vessel belonged to Newson’s representatives. He cited 2 Phill. Evid. 45 
      
      Mumford vs. Hallett, 1 Johns. Rep. 439. Graves vs. Boston Marine Insurance Company, 2 Cranch, 419. Lyman vs. United Insurance Company, &c. 17 Johns. Rep. 337. Jackson vs. Foster, 12 Johns. Rep. 488. The mailing the insurance made the defendant an agent for Newson’s representatives. He had the possession of the vessel, and was the agent of the person to whom she belonged; and the attempt to use in evidence Kane’s letters, was an attempt to defeat the right owner out ot the insurance. Lucena vs. Crauford, 3 Bos. & Pull. 75, 93 Routh vs. Thompson, 13 East, 274. Lanyon vs. Blanchard, 2 Campb. 597. Hagedorn vs. Oliverson, 2 Maule & Selw. 485. Tenant vs. Elliott, 1 Bos. & Pull. 3.
    
    
      2. On the second and third points, he cited French vs. Backhouse, 5 Burr. 2727. Wolff vs. Horncastle, 1 Bos. & Pull. 316. Whitaker’s Law of Lien, 45. Whittington vs. The Farmers’ Bank, &c. 6 Harr. & Johns. 548. Ross vs. Worsopp, 1 Bro. Parl. Ca. 284. Somerville vs. Somerville, 5 Ves. 780. Snook vs. Davidson, 2 Campb. 218. Pipon vs. Pipon, 9 Mod. 431. Holmes vs. Reemson, 4 Johns. Ch. Rep. 478. De Sobry vs. De Laistre, 2 Harr. & Johns. 224.
    
    
      3. On the fourth point, he cited Liotard vs. Graves, 3 Caine’s Rep. 234. Robinson vs. Bland, 2 Burr. 1085. Anonymous, 1 Johns. Rep. 315. Waddington vs. United Insurance Company, 17 Johns. Rep. 23.
    
    
      R. Johnson, on the same side.
    On the first bill of exceptions he contended, that the letters of Kane were not evidence, because he would not have been admitted himself to give evidence of the facts contained in those letters, he having an interest in the event of the suit. 1 Phill. Evid. 36, (and note.) Harrison vs. Vallance, 1 Bingham, 45, (8 Serg. & Lowb. 239.) Jackson vs. Eaton, 20 Johns. Rep. 478.
    On the second bill of exceptions. If the facts in Harding’s certificate were legally proved, they could not be evidence for the purpose for which the certificate was offered, because the amount of the disbursements were not pleaded by way of set-off, and no notice given of a set-off. 1 Chitty’s Plead. 474.
    
      Meredith, for Douglass.
    
    1. On the first bill of exceptions. Kane’s letters were not offered in evidence for the purpose of proving the property of the vessel to be in him, but to show that the insurance was effected by the defendant for Kane, and as his agent. It does not thereby follow that Kane sets up ownership in the vessel. Any person who has a special property in a vessel may insure. A charterer of a ship may insure her. Oliver vs. Green, 3 Mass. Rep. 133. Bartlett vs. Walter, 13 Mass. Rep. 267. Hobbs vs. Hannam, 3 Campb. 93. Phill. on Ins. 51. But it has been urged that the letters arc contradictory to the policy of insurance, and on that ground-inadmissible in evidence. The party on whose account the insurance was effected, is not named. The defendant stands in the policy as agent; and you may go out of the policy in order to ascertain who is the assured. Lawrence vs. Sebor, 2 Caine’s Rep. 203. Davis vs. Boardman, 12 Mass. Rep. 80. Phill. Ins. 63. Church vs. Hubbart, 2 Cranch, 196. 3 Starkie’s Evid. 1021. Mechanics Bank of Alexandria vs. Bank of Columbia, 5 Wheat. 326. Grant vs. Hill, 4 Taunt. 380. The verdict in this ease could not be used for or against Kane, in any suit by or against him. He was not, therefore, an interested witness. The letters are admissible evidence as a part of the res gestve.
    
    2. On the second bill of exceptions. The point involved in this exception, as to the admissibility of Harding’s certificate in evidence, is abandoned by the defendant’s counsel. The question was hastily decided by the court below without argument. The error of the court below is confessed, and the exception is waived.
    3. On the third bill of exceptions. The court below has not stated that it is a general principle that the jury are to allow interest or not in all cases, but that in this particular case it was a fact for the jury. Here the defendant may be assimilated to a stakeholder; and the question, whether he ought to pay interest, must depend upon his conduct, as to what manner he has used the money, or thrown obstacles in the way of its recovery from him. This should be left to the jury to be ascertained by them. This is an action for money had and received; and the question of interest is for the jury, and depends upon the peculiar circumstances of the case. Pease vs. Barber, 3 Caine’s Rep. 266. Anonymous, 1 Johns. Rep. 315.
    
      4. On the fourth bill of exceptions, he contended, 1, That, the evidence offered by the defendant in this exception, was admissible for the purpose for which it was offered. 2. That under the circumstances attending the effecting the insurance, it, being designed for the benefit of Kane, and made by his authority, by the defendant as his agent, it did not enure to the benefit of the plaintiff’s intestate, even though he was the true owner of the vessel; and that he was, therefore, not entitled to the proceeds of insurance in the hands of the defendant.
    This bill of exceptions embraces two prayers made by the defendant — 1st. Whether the bill of sale, being without consideration and fictitious, the plaintiff was entitled to recover. This prayer is hypothetical. The facts, that the transaction-, was collusive, are not to be doubted; and being so, no property in the vessel passed to Newson. The court refused to give the direction prayed, because the evidence was inadmissible. Was-the evidence inadmissible? It was introduced as collateral — between different parties to the instrument. Bend vs. Susquehanna Bridge & Bank Company, 6 Harr. & Johns. 128. Overseers of the Poor, &c. vs. Overseers of the Poor, &c. 10 Johns. Rep. 229, 3 Starkie’s Evid. 1051. The defendant is no party to the bill of sale, lie is not a privy; but a mere stakeholder of the fund, and not in privity with either party. The evidence was not to vary the legal operation of the bill of sale, but to defeat its existence, as a fraud upon Kane’s creditors. It is not to substitute the parol for the written evidence, but to avoid the bill of sale. 3 Starkie’s Evid. 1015. An instrument of writing intended in fraud of others, maybe avoided hy such other persons. Ib. 1017. 2d. The second prayer reverses the hypothesis in the preceding prayer, by admitting the property in the vessel to be in Newson, and raises the question, whether, as he was no party to the contract of insurance, and it did not refer to him, but was made for the benefit of Kane, the plaintiff, as his representative, was entitled to recover? The court decided, that if the facts were true, the plaintiff was entitled to. recover. Suppose this action was by Newson against the underwriters; if he could not recover from them, he cannot recover from the defendant. If the insurers paid the money to the defendant by mistake, they could recover it back from him. Grant 
      
      vs. Hill, 4 Taunt, 380. Could Newson recover from the underwriters? Two things must concur to enable him to recover; from them — a contract, and an insurable interest. He mighty have contracted in person, or by his authorised agent. Here, there was no contract between Newson and the underwriters, either in person or by agent. If by agent, where is the proof that the defendant was his agent? Neiuson was then dead, and. he had no representative until alter the money had been paid to, the defendant. The plaintiff had no legal existence, either" when the insurance was effected, or when the money was paid. There was no principal at the time of the insurance, or payment, of the money. The proof is, that the contract of insurance was made for Kane. Could it, therefore, enure to the benefit, of another person for whom it was not intended or made? No person can maintain an action on a contract to which he is not a party. 1 Esp. Dig. 202, (105.) Jordan vs. Jordan, Cro. Eliz. 369. Crow vs. Rogers, 1 Stra. 592. There is no difference in the application of this principle to the doctrine of insurance. The clause in the policy of insurance, “for whom it may concern,” is capable of being construed to comprehend the insurable interest of Kane, to the exclusion of Newson’s. Here there is proof that the insurance was effected by the defendant as the agent of Kane, and there is no proof that he insured for any other person. All actions on policies of insurance must aver an insurable interest in the plaintiff, and that the insurance was made tor his benefit, and on his account. Bell vs. Ansley 16 East, 141, (and note.) Cohen vs. Hannam, 5 Taunt. 101. If the action had been by Newson against the underwriters, and the proof in this action was given in evidence, it would not support the averment which he ought to make in his declaration. Phill. Ins. 57, 58. Bodwy vs. Union Insurance Company, Condey’s Marsh. 473, (note.) It must appear that the policy was effected for a particular person. He must be a party to the contract, or show that it was made for his benefit. Lawrence vs. Sebor, 2 Caine’s Rep. 203. Phill. Ins. 60. A person having an insurable interest, if it is different from that insured, cannot recover on the policy. Toppan vs. Massey, 2 Mass. Rep. 365. Conway vs. Gray, 10 East, 536. Phill. Ins. 63. An insurance cannot enure for the benefit of another for whose benefit it was not made. It has not been shown that the defendant insured for the benefit of Newson, or his representative. The representative of Newson being excluded by the proof in this bill of exceptions from having an insurable interest, he cannot recover. Routh vs. Thompson, 11 East, 428. Routh vs. Thompson, 13 East, 274. Where an insurance is effected by an agent, it must enure for the benefit of the person who constituted him the agent. Seamans vs. Loring, 1 Mason’s Rep. 128. It has been said that the plaintiff has adopted the insurance, as made by the defendant, as his agent. The ádoption, if it could be made, comes too late. It is after the money has been paid to the defendant. Here there could be no adoption, because the insurance was not intended for his benefit, or on his account.
    
      R. Johnson, for Newson's Adm’r. in reply,
    as to the first, second and third bills of exceptions, and in answer to the fourth bill of exceptions.
    1. On the first bill of exceptions. If the letters of Kane Were out of the case, the plaintiff would have been entitled to recover to the extent of his demand. He proved an insurable interest, and that the defendant insured for the benefit of those concerned. The irresistible conclusion would be, therefore, that he acted as the agent of the plaintiff. But the letters are intended to. prove that the defendant acted as the agent of Kane, and for his benefit; and not that Kane did not look to the interest of. Newson’s representative, and act as his agent. The letters were inadmissible. 1. Kane is to be assumed to act as agent of Newson. 2. Whether he did or not, but as a wrong-doer, the plaintiff has a right to adopt his acts. There Was no evidence to show that Katie had an insurable interest, unless, as agent of .Newson. Kane was not the owner of the vessel; the ownership was proved to be in Newson. The insurance must be presumed to have been made for the benefit of the person having the insurable interest in the thing insured. What right had Kane to insure the property of another, unless as agent? If he did not insure as agent, then he acted as a tort feasor. If the insurance had been in the name of Kane, for the benefit of those whom it might concern, then the plaintiff, having the interest in the thing insured, could recover. If the money was paid over to K«»e, then it would be money in his hands for the benefit of Newson’s representative. If a man takes the property of another, and sells it, the true owner may waive the tort, and bring an action for the value received. Here Kane took the vessel of the plaintiff, and sends her on a voyage. She is lost, and Kane received the value of the property. The plaintiff may elect to go for the value received, instead of suing Kane as a tort feasor. If an agent represents himself as owner of the thing insured, the policy will enure to the benefit of the true owner. Lanyon vs. Blanchard, 2 Campb. 597. Here Kane, being the agent of Newson,, employed the defendant to effect the insurance for him. The defendant, knowing nothing of the. true owner, effects the insurance in his own name, and.for all whom it might concern, the insurance will enure to the benefit of the true owner. This is presisely the case of Lanyon vs. Blanchard, 2 Campb. 597. It is immaterial whether the true owner authorised, or knew of the. insurance, he may adopt it at any time. If the •vessel arrived safe, he might disavow the act; and if she was lost, he could claim the insurance. Hagedorn vs. Oliverson, 2 Maule & Selw. 485. The defendant cannot set up the invalidity of the policy to prevent his paying the money over to the true owner. Tenant vs. Elliott, 1 Bos. & Pull. 3. The letters of Kane were not offered to show, that the insurance was a valid one. If the policy was illegal, tho party receiving the money under it cannot avoid the policy. The letters were offered, to prove, that the fund belonged to Kane, and not to the plaintiff. Kane was not a competent witness, nor are his letters competent testimony for the defendant. If the defendant succeeds in this action, he cannot retain the money, but will be obliged to pay it over to Kane. His letters then go to establish his interest in the fund. He is substantially the defendant. Harrison vs. Vallance, 8 Serg. & Lowb. 239. Whether the verdict could or could not be used in evidence for or against Kane, yet the effect of a verdict for the defendant would be to place the fund into the hands of Kane. If the suit was by Kane against the underwriters, his letters would bo evidence as á part of the res gestse. The effect of his letters go to show that the fund does not belong to the plaintiff, but to him.
    2. On the second bill of exceptions. Although this exception has been abandoned in this court by the defendant, the plaintiff has a right to the opinion of this court on it. The ■defendant may abandon the exception by refusing to urge any thing in support of the opinion given by 'the court below, and confess that that Court erred in relation to it; yet as it is the plaintiff’s exception, he is entitled to the opinion Of this court upon it. The question, whether or not the certificate of Harming was evidence, lias been answered by the defendant’s counsell, who-admits that it was not legal evidence. If it had been admissible; Could tiñe facts contained in it be used to prove the'amount Of disbursements' made by the defendant before the receipt of the money, on the insurance, and that he had paid them? Olí tho state of the pleadings, the facts coülcl not be used, for that purpose, as a set-off to the plaintiff’s claim. By offering the set-off, the defendant admits, under the issue joined, that he made the assumpsit charged in the declaration, To use it as a discount or set-off, the defendant must have pleaded it, or have given notice, to the plaintiff of its being relied on at the trial.
    3. On the third bill of exceptions. The question of interest is a question of law for the court, and not one of fact for the jury. Pease vs. Barber, 3 Caine’s Rep. 266. Liotard vs. Graves, Ib. 234. Waddington vs. United Insurance Company, 17 Johns. Rep. 23. Anonymous, 1 Johns. Rep. 315.
    4. Oh the fourth bill of exceptions. The bill of sale of the vessel from Kane to Newson has been proved by the subscribing witness. It was executed before the insurance was effected.- By the first prayer the court was called upon to direct the jury that this bill of sale was fictitious, without any evidence' to show that it was so, except Kane’s letters. It was an Abstract question, which the court were not bound to decide. -But the proof is, that the bill of sale was a bona fide transaction. . This evidence came out on the cross examination of a witness by the defendant as.to Neioson’s declarations. As there was no evidence to impeach the bill of sale, the direction prayed was properly refused. Coale vs. Harrington, (ante 147.) If there had been no evidence stated in the bill of exceptions, then this court might presume that such evidence was offered so as to justify the prayer. Barnes vs. Blackiston, 2 Harr. & Johns. 376. The bill of sale was to be rendered void, if fraudulent, only at the instance of a creditor.
    As to the second prayer — the proof is, that when Kane directed the insurance, he acted witli a view to the benefit of .Newson’s representative. lío took possession of the vessel, ihe owner being dead. He became thereby executor de son tort, and as such he sent the vessel to Baltimore, and caused her to be insured. He had an insurable interest; and the presumption is, that he had the insurance effected for the benefit of Newson’s representative, Hagedorn vs Oliverson, 2 Maule & Selw. 485. There is an inconsistency in the opinions of the coo.-, t below, as given in the first and in the fourth bills of exceptions. In the first the letters of Kane arc admitted in evidence, and in the latter the court say the letters prove nothing,
    
      Mitchell, on the same side.
    On the second bill of exceptions, as to the allowance for disbursements, he referred to Snook vs. Davidson, 2 Campb. 218. 2 Liv. on Agency, 80, 83, 103. Munford vs. Nicoll, 20 Johns. Rep. 613. Phill. Ins. 520.
    On the fourth bill oí exceptions What is the plaintiff’s right to recover founded on? It is upon the receipt of the money by the defendant, as bis agent, under Iho policies of insurance. The right of the plaintiff does not rest alone on the bill of sale, but on the actual possession of the vessel as owner. There is a consideration expressed in the bill of sale which Kane acknowledged to be a valid one, and which he cannot now contradict. It is evidence of a bona fide, consideration. There are also the declarations of Newson, as made evidence by the defendant, that he was the owner, and the recognition by J£ane of that ownership. The first prayer, as stated in this bill of exceptions, is founded ou.tho evidence contained in the depositions returned under the commission; and Kane’s letters are no part of the evidence upon which the prayer was founded. Riggin vs. Patapsco Insurance Company, (ante 279.) Rut the letters do not impeach the bill ot sale; and if they doA •U is not competent for a parly, who lias executed a a instrument of writing, to come into court, and contest its validity. He is estopped from denying the title which passed under it. If the bill of sale was voluntary, it would make no difference as to Kane, unless he could show it was obtained by fraud or imposition; and there is no such proof here. No person, but ho who is defrauded, can take advantage of it. Jackson vs. Eaton, 20 Johns. Rep. 478. There is no privity between the defendant and Kane, so as to justify the former m setting up a fraud by Newson on Eane. He was no creditor of Kane. But if he can, are Kane’s letters evidence to prove the fraud? They are but the declarations of Kane, and Kane himself would not be a competent witness. Nor can Kane’s death affect the case. If they were his dying declarations they would not be evidence, even if he were a competent witness. Wilson vs. Boerm, 15 Johns. Rep. 290. The declarations of a party in his own favour arc never admitted in evidence. The letters, therefore, are incompetent to impeach the bill of sale. 2 Phill. Evid. 62, 219. Roseboom vs. Billington, 17 Johns. Rep. 187. Fairlie vs. Hastings, 10 Ves. 123. Whether or not the defendant was the agent of Kane, the court did not take into consideration. They said that no evidence was admissible to prove that the bill of sale was collusive, and intended to defraud Kane’s creditors. What was it to the defendant whether the bill of sale was fraudulent or not? He was not a creditor, and none but creditors could prove the fraud, and take advantage of it. In the second prayer the defendant relies upon his own order for insurance, and that the insurances were effected in pursuance of that order. If the suit had been by Kane against the insurers, the defendant would have been a competent w;it-ness for Kane, and he might or might not use Kane’s letters to show his agency. The defendant, instead of naming his principal in the policies, describes him; this is as sufficient as if ho liad named him. But when the person described, the owner of the Vessel, comes forward, he is denied by the agent. Who was the person for whom the defendant made the insurance? It. was the owner of the vessel; and who is the owner? Not Kane, but Nexoson.' What is the legal import of the words used in the policies, “for whom, it may concern?” It imports the person having an interest in the thing insured. They have a technical meaning. But ike evidence offered denied the policies, and denied the name of the owner of the thing insured. It denies that the owner was Newson, but that it was Kane. The defendant, by the evidence, denies Ills principal, who was the true owner, and that true owner was Newson. The defendant may say that lie was mistaken as to who was his principal; but lie cannot shield himself under such a defence. I Ait him go into equity to reform the contract. At law it is binding upon him. What he intended to do, and what he did do, are different. lie may have intended to insure for Kane, but he insured for the owner, and Newson, was the owner. “For whom it may concern,” means the person who has an interest in the thing insured. Seamans vs. Loring, 1 Mason's Rep. 128. Lyman vs. United Insurance Company, 17 Johns. Rep. 377. S. C. 2 Johns. Ch. Rep. 630. If the insurance was effected for Kane, it was a void policy; for he could not bring himself within the terms “for whom it may concern.” He had no insurable interest. It would be a wagering policy, if it was net effected for the benefit of Newson, and would be void per sc. If Newson?s representative had no interest, then the plaintiff lias no claim to the money. As to wagering policies, he referred to Goram vs. Sweeting, 2 Saund. 201, (and notes.) Wolff vs. Horncastle, 1 Bos. & Pull. 320. A contract of insurance, is a contract of indemnity. 1 Phill. Ins. 4, 26, 29. There is no evidence that Kane had an insurable interest; and if lie bad none, he could not insure on a valid policy. It would be a wagering policy, and therefore void. To give effect to the policies of insurance in this case, they must be construed as effected for the benefit of Newson. Cousins vs. Nantes, 3 Taunt. 521. They will protect the interest of Newson if there was no mistake; and there was no mistake, for the underwriters insured ior the benefit of the true owner. If the defendant intended to insure for the benefit of Kane, that fact cannot be proved by parol evidence — the policies being for the benefit of those whom it might concern — the true owner. To reform the contract for mistake, it must appear to be the mistake of both parties; and here there is no evidence that the underwriters were mistaken as for whoso benefit the insurances ‘Wer$ made- Tbev have not complained, hut have acted under their contracts; and have admitted that the policies covered ail insurable interest, by paying the money on the loss of the vessel, to the defendant, as the agent of the person interested! Parol evidence is not admissible to prove a mistake. Lyman vs. United Ins. Company, 17 Johns. Rep. 377. S. C. 2 Johns. Ch. Rep. 630. Gillespie vs. Moon, 2 Johns. Ch. Rep. 585. Graves vs. Boston Marine Insurance Company, 2 Cranch, 419. Phill. Ins. 5, (note.) The defendant knew, from Hand’s letters, that Newson was the owner of the vessel; and when he applied for insurance he did not state on whose account he wanted the insurance. Kane did not direct in whose name the vessel should be insured; and the insurers never saw Hand’s letters. Who is to say that the letters of Kane were Written at the time they purport to bear date? Where are the defendant’s answers to those letters? The letters cannot be evidence that the insurances were effected by the defendant as the agent of Kane. 1 Phill. Evict. 426, 427. The defendant cannot prove his agency by letters. Where an agent sues, he is the contracting party on the instrument. He must aver the interest, and it must be proved. It is not necessary that an agent should know his principal, in order to act for him. It is for the principal to sanction the acts of his agent. Routh vs. Thompson, 13 East, 277, 282, 285. Phill. Ins. 519. Here the plaintiff has adopted the agency of the defendant, and in due and legal time. The acts of an agent may be ratified, as in this case, after he has received the money undef an: insurance effected for the benefit of his principal Lanyon vs. Blanchard, 2 Campb. 597. Hagedorn vs. Oliverson, 2 Maule & Selw. 490. Stienback vs. Rhinelander, 3 Johns. Cas. 269, per Kent, Ch. J. Phill. Ins. 59, 519, 520. Snook vs. Davidson, 2 Campb. 218.
    
      Wirt, (Attorney General of U. S.) for Douglass,
    
    in reply, on the fourth .bill of exceptions. 1. The objection is, that the defendant had no right to make the first prayer — there' being no evidence, leading to the belief that the bill of sale-was collusive, and that the court cannot be called on to give an opinion on an abstract question. If there was-any proof going' to show that the bill of sale was collusive, whether it was con-' elusive or not, the defendant had a right to call on the court for its opinion. There was evidence bearing on the point, oa Which the defendant relied in obtaining the opinion of tha court, <h; the bill of sale was collusive. This evidence is the letters of Kane — the order for insurance — the policies of insurance — the proof of loss — the deposition of Harding, and the bill of lading and bill of sale referred to in Harding’s deposition. All this evidence appears in the fourth bill of exceptions, upon which the prayer was founded. He then went into an examination of the testimony taken under the commission, and commented upon. it. He insisted that the proof Went to show that the vessel was not an American vessel. 2 Vol. Laws of U. S. 113. Kane’s letters were offered to show that the defendant acted as his agent. They show in what light Kane presented himself as principal and owner of the vessel — that he assumed the character of owner, and as such constituted the defendant his agent to effect the insurance. There was sufficient evidence to justify the prayer being submitted to the court; and such a prayer may be offered for the court’s opinion, without any evidence being stated. Barnes vs. Blackiston, 2 Harr. & Johns. 376. If the bill of sale Was in fraud of the public laws, then any person may take advantage of it; and here was a fraud attempted on the public; and to evade the laws of the United States It was an attempt to obtain a registry of the vessel as American, contrary^ to the laws of the United States. In showing the bill of salo to be fraudulent, there is a distinction between a plaintiff and ^defendant. The defendant here is not on the same footing as Kane would be were he the defendant. How stands the defendant in this action? He is said to be a stakeholder. In ¿September 1817 Kant died, and the loss did not occur until December 1817. The whole money was received by the defendant in March 1818. Did he receive the money as agent of Kune? A dead man can have no agent. Whose agent was be when he received the money? An administrator is the representative of the creditors of the deceased; so that when the money was received it belonged to Kane’s creditors. It would be competent for Kane’s creditors to show in equity that the bill of sale was made to defraud them; and if they could, 
      Kane’s administrator, in like manner* could, on behalf of the creditors. The defendant then held the fund as belonging to the administrator* of Kane, representing the creditors. lie could make the same defence, and contest the bill of sale on the same evidence, which Kane’s administrator could. The defendant is then for this purpose to be connected with Kane's -administrator and creditors, and not-with Kane himself. The assignees of a bankrupt may avoid a fraudulent deed of the bankrupt. But it has been said that there is no proof that there were any creditors of Kane. The instruction of the court to the jury assumes that there were creditors; and that the defendant, in right of the creditors, could not give thé proof in evidence. The bill of sale, besides, is not according to the directions of the act of congress, which points out how a transfer of an American vessel shall be made. 2 Vol. L. U. S. 113. and 4 Vol. L. U. S. 261.
    
    
      2. As to the second prayer, as stated in this bill of exceptions. Admit that the defendant insured for whom it might concern, and that Kane had no interest. If he could not recover, neither could Newson. In such a policy by an agent, no person can recover, but by showing — 1. That he has an interest; and 3. That the policy was made for, his benefit. To prove a policy .Was made for his benefit he must do so aliunde the instrument. ‘'‘For whom it may concern,” are technical words, and mean the true owner concerned in the contract. It does not necessarily follow, that by proving an interest in the thing insured, that the policy was intended for him. He who claims must prove an interest, and also that the contract was intended for him, and that he has adopted it. Seamans vs. Loring, 1 Mason’s Rep. 128, 136. 1 Condy’s Marsh. 473, (note.) Phill. Ins. 57, 59, 60. Stienback vs. Rhinelander, 3 Johns. Cas. 269. Lawrence vs. Sebor, 2 Caine’s Rep. 203. Toppan vs. Atkinson, 2 Mass. Rep. 365, 369. In his declaration he must aver that the insurance was effected for his benefit, and on hia account. Bell vs. Ansley, 16 East, 141. Cohen vs. Hannam, 5 Taunt. 101. Grant vs. Hill, 4 Taunt. 380. Here the-plaintiff must, prove he had an interest in the vessel insured; that he authorised the defendant to act for him as his agent in effecting the insurance; that the defendant intended to act, and did act for him as ins agent; that the contract was intended for Lis benefit, and on his account, and that he adopted it in due and reasonable time. In fact, he must prove in this action what he would be bound to prove if he had brought an action against the underwriters. The doctrine of adoption and ratification go upon the ground that the contract was intended for the party, and that he adopted it; but he cannot adopt, what was not intended for him, or his benefit. Phill. Ins. 61, 519. Here the defendant did not intend to act for Newson. 2 Park, 409, 410, 411. But it has been urged, that although the insurance was not intended for Newson, yet being made “for whom it may concern,” he may come in and claim. This is not the law; he cannot come in unless the defendant intended to insure for him. Hagedorn vs. Oliverson, 2 Maule & Selw. 485. Wolff vs. Horncastle, 1 Bos. & Pull. 316. Lucena vs. Crawford, 3 Bos. & Pull. 75. Routh vs. Thompson, 13 East, 274, 284.
    As to the right of adoption. Within what time must it be exercised? It need not be before the loss; it may be afterwards. But it cannot be after the insurance has been paid. Phill. Ins, 61. The act must be adopted while the transaction is in fieri, and not after the cpiestion has been settled. The party adopting must come in and encounter some of the expense; and cannot lie by, and appear after the question has been decided. The question tried is, whether it is his contract or not. The question of adoption did not arise in Lanyon vs. Blanchard, 2 Campb, 597; the question there was a question of lien. How can a man ratify an act done by another for the benefit of a third person? It requires the concurrence of two minds.
    Here the policies are for the benefit of an unnamed person. It is a latent ambiguity, and may be explained by parol evidence; and Kane’s letters are evidence for that purpose. 3 Starkie’s Evid. 1002, 1021, 1023, 1024. Mechanics Bank of Alexandria vs. Bank of Columbia, 5 Wheat. 336. The plaintiff forces the inquiry, how the money came into the hands of the defendant? He must look to the policies of insurance, and to Kane’s letters. They would be evidence against the underwriters, and they are evidence in this action. Put the letters out of the case, and what is the plaintiff’s right to recover? He has no colour' of title. Suppose he had sued the insurers, he must have proved the policies were made for his benefit. As to the prayers made by the defendant in the court below, this court are referred to Routh vs. Thompson, 11 East, 428. But it has been said that Kane took the vessel as a wrong-doer — suppose he did, the plaintiff has no right to call upon the defendant to answer for the acts of Kane. He cannot give up the tort, and go for the money in the hands of the defendant. This action being for money had and received cannot be sustained against the defendant. lie did not receive the money which had belonged to Neiuson. It must have been Newson’s money before the defendant received it, to enable the plaintiff to recover. When the defendant received the money, Newson was dead. In Tenant vs. Elliott, 1 Bos. & Pull. 3, the insurance was effected by the plaintiff in the action; and it was his contract. It is not, therefore, a parallel case with the present. See also Grant vs. Hill, 4 Taunt. 380.
   Buchanan, Ch. J.

delivered the opinion of the Court. These " are cross appeals from the judgment of the Baltimore county. Court in a suit originally instituted by Roswell L. olt, administrator of Samuel Newson, against George Douglass, to recover the amount received by him on account of certain insurances effected on the ship Mohawk, and are presented to this court on four bills of exceptions taken at the trial; the three first on the part of the plaintiff below, and the fourth on the part of the defendant.

The two appeals having been discussed together before this eourt, they will be considered as if they were consolidated and formed but one case, and the parties treated as plaintiff and defendant. And the admissibility in evidence of the letters front Archibald Kane to Douglass, which arc introduced into the fourth bill of exceptions, constituting also the subject of the first exception, the first and the fourth exceptions will be examined in connexion.

The admissibility of these letters is resisted for different reasons; first, on the ground that Kane, if living, could not have been received as a witness to sustain the issue on the part of the defendant, by proving that the property in the ship was his, and that he directed the insurance for his own benefit; and that his declarations, whether oral or in writing, are not competent for the purpose of establishing what he himself could not have been permitted to prove. The answer to which is, that however true, as a general position, it is not applicable to this case.

The letters of Kane were not offered or admitted in evidence as his mere declarations, or with a view of proving property in him at the time the insurances were effected, but for the purpose only, as is stated in the bill of exceptions, of showing by what authority Douglass, the defendant, procured the insurances to be made, and that he acted as the agent of Kane in these transactions, without affecting any question of property or right in Kane to the vessel insured; and it is very clear, that that which is not evidence for one purpose, may be for another, and when offered to prove that for which it is competent, must for that purpose be received.

Kane might, without any insurable interest in the vessel, have caused her to be insured, and have constituted the defendant his agent for that purpose; which fact of agency, unconnected with the question of property or insurable interest, the defendant was competent to prove by the best evidence the nature of the case would admit of; and that best evidence was the correspondence authorising and directing the insurance.

The agency of the defendant was a fact connected with the matter in controversy, hut in no otherwise affecting the plaintiff than as the existence of that fact affected the nature of the transaction which gave birth to the suit, and not as concluding the rights of the plaintiff, or establishing the interest of Kane.

It is not understood as being denied, that the defendant might have been permitted to prove, that in effecting the insurances he acted as the agent of Kane; and how else should that agency have been proved than by the production of the letters themselves by which it was created?

If they were not letters authorising and directing insurance to be effected, but merely reciting or speaking of a pre-existing agency, and depending for their effect on the credit of Kane, the objection would have assumed a different character; but as it is, the first ground of objection cannot be sustained. And looking to the cases of insurance, reported in the books, it will fee found to be the common, the every day practice, to admit such testimony for the purpose for which it was offered and received in this case. And besides, that it is not opposed to any settled rule of evidence, the very nature of such transactions requires it; it is essential to the great operations of commerce between the different and remote sections of the world, which are, and must to a great extent, be carried on through an epistolary medium.

But it is supposed that the general terms of the policies of insurance of “George Douglass, for account of whom it may concern,” &e. mean any and every body having an interest in the thing insured; and with that understanding of the policies, it is further contended, that these letters, (showing that the insurances were procured under authority derived from Kane,) were inadmissible, as tending to contradict the policies, which on the face of them, are for the benefit of all who may have ány interest in the ship, by showing that they were effected for the benefit of Kane alone. If that were admitted to be the true meaning of the terms of the policy, it would by no means follow that the objection to the admissibility of the letters, arising merely out of that construction, could be sustained.

They were not used for the purpose of proving any interest or property in Kane; but if they had been, and were free from other objections, what was there to exclude evidence of property in him, and that he was the only person concerned in interest in the insurances? The policies being “for account of whom it might concern,” evidence of who was in fact concern-' ed, could not surely be contradictory to the policies. On what principle does the plaintiff seek to recover from the defendant the amount insured, other than that the ship belonged to Samuel Newson, his intestate, at the time of his death, and that the insurances were for the sole benefit of his representatives? And if evidence, that the insurances were obtained for the benefit of Kane, was inadmissible, as being contradictory to the terms of the policies, on what ground could proof be received that they were effected for the benefit of Newson’s representatives?

But “whom it may concern” is a technical phrase, common to policies of insurance, and is understood to mean, not any and every body who may chance to have an interest ip the thing insured, but such only as are in the contemplation of the contract. Such a policy supposes an agency, and proceeding upon that ground, looks only to the principal in whose behalf, or on whose account, the agent moves in the transaction; and he, for whose benefit the insurance is procured, is the person in the contemplation of the contract — is he, whom it alone concerns.

The inquiry, therefore, in such cases, always is for whose benefit, on whose account, was the insurance obtained, and that not appearing upon the face of the instrument, is a proper subject of extrinsic evidence, which comes in aid of the policy, by pointing out the person to whom it is applicable, the party who is in fact concerned. And this is not confined to policies of insurance; but in the application of every instrument of writing, evidence aliunde is necessarily used to designate the proper subject matter to which it relates. The letters of Kane, therefore, were properly admitted in evidence, for the purpose of showing that the defendant effected the insurances as his agent, and under authority derived from him; which disposes of the first exception, leaving the question of properly in the ship, and the intention of Kane, at the time of directing her to be insured, to the effect and operation of the other evidence in the cause.

It is well settled, that where a policy has not the general clause contained in this, or one of similar import, hone can avail themselves of it but those who are named as the parties insured, or on whose account it is expressed to be made.

But it is equally clear, that a policy in the name of one, with the general clause “for whom it may concern,” will cover and protect the interest of any person for whose benefit it was intended, and who authorised it to be effected. And if in the absence of any express order or authority from the owner, or any previous communication with him upon the subject, such policy is effected in his behalf; the intention at the time of the party «effecting it to cover his particular interest, will so connect him with the policy as that his adoption of it afterwards will cause it to enure to his benefit. The subsequent adoption of a policy by a party interested, and for whose benefit it was in? tended, being deemed equivalent to his prior order for insurance. On this principle the cases of Routh vs. Thomson, 13 East, 274, and Hagedorn vs. Oliverson, 2 Maule & Selw. 485, were decided.

If then, Newson at the time of his death was the owner of the ship Mohawk, and Kane, when he gave the order for insurance to the defendant, did it with reference to the interest of Newson’s representatives, and intended the insurance for their benefit, the policies, on being adopted by the plaintiff, would enure to his benefit, and Kane, if he had received the amount insured, would have been answerable over to him; and so with the present defendant into whose hands it has come. Or, if the money had not been paid by the underwriters, actions might have been maintained against them on the policies for the present plaintiff, on proper averments in the declaration of his interest, &c. And the circumstance that the policies were effected by the defendant, under the authority of Kane, makes no difference; acting as his sub-agent, they enure in the same manner that they would have done if they had been effected by Kane himself.

The second prayer, therefore, in the fourth exception, was properly rejected, the plaintiff’s right to recover being assumed by the terms of that prayer to depend, not on the intention of Kane at the time of giving the order for insurance, but to rest entirely upon the understanding and intention of the defendant. And if it had been granted, the jury must have given a verdict for the defendant, on being satisfied that he effected the insurances as the agent, and for the benefit of Kane, even though they should have believed, from the evidence in the cause, that Kane himself had in contemplation the interest of Newson’s representatives, and intended the insurance for their benefit.

But if Kane did not give the order for insurance with reference, to the interestof Newson’s representatives, but intended it for his own benefit, and not theirs, then the plaintiff is not entitled to recover. For no one can, by subsequent adoption, avail himself of such a policy, who was not at the time in the contemplation of the party procuring the insurance, and for whose benefit it was not intended, notwithstanding any interest he may have had in the thing insured. The policy not being effected with reference to his interest, his interest was not insured, and he of course not' concerned in the transaction.

Tn the opinion of this court there is nothing in the first pray»' cr contained in the fourth bill of exceptions.

If the bill of sale from Kane to Newson, under which the plaintiff claims, was in fact fictitious, and intended to defraud the creditors of Kane, it does not lie in the mouth of the defendant, standing in the place of Kane’s representatives, to set" up that fraud in bar of the plaintiff’s recovery, however unclean the hands of Newson may have been.

As to the second exception, it is conceded by the counsel for' the defendant, that there was error in permitting the certificate of Harding to be read to the jury. It is not to be distinguished from any other mere declaration, in writing, of a third person, of the existence of a particular fact, which from its character can only be proved by the testimony of the witness himself on oath; and was clearly inadmissible, and most probably' was admitted by inadvertence.

The question of interest, arising on the third exception, is one of frequent occurrence in the books, and has been found to be a subj’ect not susceptible of the application of any fixed and general rule of law, the dealings between man and man being so various in their nature, that scarcely two cases are to be met with presenting the same aspect, but each depending upon its own peculiar circumstances.

There are indeed eases, not to speak of bonds, &c. in which interest is recoverable as of right. Such as on a contract in writing to pay money on a day certain; as in the case of a bill of exchange or a promissory note, or on a contract for the payment of interest, or where the money claimed has actually been used. But with such exceptions, it has long been the settled practice of the courts of this state, to refer the question of interest entirely to the jury, who may allow it or not in the shape of damages, according to the equity and justice appearing between the parties, on a consideration of all the circumstances §.f the particular case as disclosed at the trial.

The court below, therefore, did right in refusing to give the direction prayed, and in submitting the question of interest to the jury.

But because the certificate of Harding was suffered to be read in evidence to the jury, as stated in the second bill of exceptions, the judgment of that court must be reversed

Before judgment was entered in either case, the appellant’s attorney dismissed the appeal made by Colt.

Colt’s appeal dismissed.

On the appeal by Douglass.

JUDGMENT APEIRMED,  