Mr. Justice Gordon

delivered the opinion of the court, March 7th 1881.

Several errors occurred in the trial of this case in the court below, and they are of a character so obvious that but little argument is necessary to develop thorn.

1. In the face of the defendants’ objection, it was certainly erroneous to admit the policy in evidence without proof of its execution. About a proposition so very plain as this there can be no doubt, and it needs but to bo stated in order to exhibit its unsoundness.

2. The policy purports to have been issued by John E. Barry, as sub-agent of the defendant for the state of Texas, and who was supposed to have received his appointment from E. II. Angomar & Co., of the city of New Orleans. But of the agency of Angomar & Co. there was no proof whatever. It is, therefore, difficult to understand upon what principio of law the appointment of Barry was supported, for it is certain that ho who would avail himself of the acts of an alleged agent, must, in order to charge the principal, prove the authority under which the supposed agent acted: Hay v. Lynn, 7 Watts 525; Moore’s Ex’rs v. Patterson, 4 Casey 505.

3. The agreement between Angomar & Co. and Barry, appointing the latter broker and agent for the defendant, was not sufficiently proved, or rather, was not proved at all. Barry testifies that he acted under the authority conferred by this paper, but he neither does, nor was he in a position to prove its execution. The writing was attested by subscribing witnesses, and though not under seal, it ought to have been proved by those witnesses, or one of them, or, as was ruled in Williams v. Floyd, 1 Jones 499, by the admission of the parties who executed it.

4. The court erred in instructing the jury as follows: “ The jury are entitled, in estimating the weight of evidence in the case, to consider the circumstances under which it was given, and in this connection, you may consider not only what is in the case, but what might and ought naturally to bo in it, but is not. When, therefore, the defendants’ counsel asks you to say that there is not enough evidence to satisfy you that this policy was issued by the defendants, or with their authority, you may consider, in weighing the evidence on this point, the fact that the officers of the defendants, or some of them, have sat here during the trial, and have not been called to deny the fact, hut have chosen to rest their defence on the weakness of the plaintiff’s proof; that they had a right to do, but you are entitled to consider the fact in this connection.” This was a mistake, and perhaps the one upon which all the others were founded. The plaintiff, if she expected a verdict, was bound *242to make out her case; until this was done the defendant had nothing to do, and the fact that it did what was entirely proper for it to do, keep silent,' ought not to have been permitted to tell against it. If the plaintiff’s case was not proved, the silence of the defendant did not help it.

5. As the policy, in terms, made the application part thereof, on the authority of the Lycoming Mutual Ins. Co. v. Sailer, 17 P. Smith 108, the policy ought not to have been admitted without the application. As, however, this paper is one which belongs to, and of necessity, is in the possession of the company, the refusal of the company to produce it on notice, would be all that would be required to make the policy admissible without it.

The remaining assignments are dismissed, as containing nothing requiring serious consideration.

The judgment is reversed, and a new venire awarded.