much argument, in the cases of Kahl v. Jansen(1), and Langhorn v. Allnut (2), that the letters of an agent abroad to his principal, containing a narrative of the transaction in which he had been employed, were not admissible in evidence against the principal, as the mere representation of the agent. The general rule on the subject was there fully recognised and confirmed. "When it is proved," said the Chief Justice, "that A. is agent of B., whatever A. does, or says, or writes, in the making of a contract as agent of B., is admissible in evidence, because it is part of the contract, which he makes for B., and which therefore binds him, but it is not admissible as the agent's account of what passes."(3) Such declarations are admitted in evidence, not for the purpose of estab lishing the truth of the fact stated, but as representations, by which the principal is as much bound as if he made them himself, and which are equally binding, whether the fact stated be true or false. (a)

The fact of the agency must be first established, before the declarations of a supposed agent can be received. For this purpose, the admissions of the principal are evidence against himself; or the fact may be proved di

(1) 10 Ves. 127.

Peazson, 4 Taunt. 663. S. P. 2) 4 Taunt. 5:11, and Reyner v (3) 4 Taunt. 519.

(a) The contemporaneous correspondence of an agent, in that character, on the subject in which he was employed with his principal, is proper evidence to show the original nature and complexion of the facts in controversy, and is evidence for the agent, in a suit in which he is a party. Bingham v Cabot et al, 3 Dall. 39. Where a letter written by an agent was given in evidence, as proof of a contract, it was held, that the principal having confided to his agent the making of the contract, confided to him, of consequence, the power of furnishing evidence of the contract: the contract having been made by parol without witnesses, it was impossible to prove it in any other manner than by subsequent declarations of the party, but, although these declarations were evidence, they were not conclusive. Meade v M'Donell, 5 Binney 195. In the case of Blight v Ashley, 1 Peter's Rep. 15, Judge Washington says, where the object is to prove what were the motives or inducements for a man to contract with an agent, what were the statements made by him, the letters or conversation of such agent are proper evidence, not of the facts stated in them but that such inducements and statements were made. See also Beaument & wife v Field, 1 B. & Alderson's Rep. 247.

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rectly by the agent. (a) In the case of Johnson v. Ward(1), an action on a policy of insurance, the affidavit of a person, stating that he subscribed the policy on behalf of the defendant, (which affidavit the defendant himself had previously used, on a motion to put off the trial,) was under the particular circumstances properly admitted as proof of the agency. The defendant having used the affidavit for such a purpose, must be considered as having known and adopted its contents. But the single circumstance, that the affidavit purports to have been made by a person as agent, would not be sufficient proof of his being invested with that authority. The attorney of one of the parties, who has made an admission with intent to obviate the necessity of proving the fact, must be supposed to have an authority for that purpose, and his client will be bound by the admission, (2) (c) and propositions, made by an attorney on the part of his client, (whether before or after the commencement of a suit,) respecting a demand which another person had against him, may be used as evidence against the client.(3)— These propositions, though they cannot be proved by the attorney, from a regard to the privilege of the client, yet, if proved by another witness, are received as the admission of an accredited agent; and proof, that they were made by the attorney on the record, will be suficient to establish his agency.(4)

(1) 6 Esp. N. P. C. 48.

(2) Young v Wright, 1 Campb, 141. Milward v Temple, I Campb. 375.

9.

(3) Gainsford v Grammar, 2 Campb

(4) S. C. and see Marshall v Cliff, 4 Campb. 133.

(a) In mercantile cases, a factor may generally prove his own authority. Aliter, in sales of land by an agent, which must be by written authority. Nickolson v Mifflin, 2 Yeates' Rep. 38.-To let in proof of the acts of an agent, it is necessary to establish the agency by other evidence than such as may be derived from the acts proposed to be proved. Scott v Crane, 1 Connec. Rep. 255. The mere declarations or acts of an agent shall not be admitted to prove his agency. Plu sted v Rudeback, 1 Yeates 205.

(b) Gelston and Schenck v Hoyt, 13 Johns. Rep. 361.

From analogy to the preceding case of agent and prin cipal, what a sheriff's officer has said at the time of the execution of a writ, or concerning his custody of a debtor taken in execution, will be admissible in evidence against the sheriff himself in an action against him for an escape,(a) as part of the transaction in which he represents the defendant, and for which the defendant is responsible. (1) The declaration of an under-sheriff is not evidence against his principal, excepting so far as it constitutes a part of the act, for which the sheriff is responsible; and though the rule seems to have been laid down in larger and more general terms in the case of Yabsley and Doble, it has been so restricted by several later authorities. (b) The statement by the sheriff's officer is not admissible, unless the relation between the officer and the sheriff in the particular transaction has been clearly proved by other independent evidence. A copy of the warrant produced by the officer, under which he professed to act by the sheriff's order, is not sufficient (2); nor is the bond of indemnity, given by him, any proof of his acting under the authority of the sheriff on a par ticular occasion, for the bailiff is not his general officer; he gives a bond to execute such warrants as shall be directed to him; and when he receives a warrant direct

(1) Bowsher v Cally, Sheriff of Wilts, I Campb. 391. n. North v Miles, Sher. of Mid. do. 389. Yabsley v

Doble, 1 Ld. Ray. 190. See Drake v
Sykes, 7 T. R. 116, 117.

(2) Drake v Sykes, 7 T. R. 113.

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(a) In an action against the sheriff, for the the default of his deputy, the letters and confessions of the deputy are competent evidence, 12 Mass. Rep. 163. Tyler v Ulmer.

(6) In an action on the case against a sheriff for a false return to a fi. fa. it was beld that the acknowledgment of the deputy of the sheriff made to the attorney of the plaintiff, in answer to inquiries relative to the execution, which had been delivered to the deputy to be executed, and while the execution was in force, was admissible evidence to charge the sheriff; as the declarations were made to a party concerned, in relation to the business of the execution, and while the obligation to execute it remained in full force; they were, therefore, made in the course of the transaction, and were to be considered as part of the act of the depu ty touching the execution of the writ. Mott and others v Kip, 10 Johns. Rep 478. Vide Hecker v Jarrel, 3 Binney 404.

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ed to him, he becomes the sheriff's special officer.(1)— The authority from the sheriff is best proved by the warrant itself, usually kept in the custody of the officer; if he has returned it to the sheriff's office, a notice to produce it should be regularly served, and secondary evidence of the warrant will then be admitted. Or, instead of proving the warrant, if it can be shewn that the sheriff has recognised the bailiff, who executed the writ, as the officer whom he had intrusted with the execution, such a recognition is evidence of the bailiff's acting under his authority; as, where a paper was produced from the sheriff's office, containing as well an order to the officer to give the necessary instructions for making a return to the writ in question, as also his return, this was held to be a clear recognition by the sheriff of his baying authorized the officer to execute the writ. (2) But to connect a sheriff with the acts of a particular officer in the execution of a writ, it is not sufficient to prove that the officer's name appears on the writ returned, though it should appear to be the practice in the sheriff's office to indorse upon the writ the name of the officer, who executed the warrant. (3) (a)

*On the same principle,if one party refers another, for information on a disputed fact, to a third person as authorized to answer for him(4), or employs an agent to make certain propositions respecting a transaction between himself and another(5), he is bound by what his agent says, or does, within the scope of his authority, as much as if it had been done, or said, by himself. Thus, for example, in an action for goods sold and de

(1) Drake v Sykes. 7 T. R. 113.
(2) Jones v Wood, 3 Campb. 228.
(3) Jones v Wood, 3 Campb. 229.
See Blatch v Archer. Cowp. 65. M'
Neil v Perchard, 1 Esp. N. P. C. 263.

(4) Daniel v Pitt, 1 Campb. 366. Lloyd v Willan, 1 Esp. N. P. C. 178. (5) Gainsford v Grammar, 2 Campb. 9.

(a) Morgan v Bridges, 2 Starkie 314. Hill v Leigh & Reay, 1 Holt N. P. Rep. 217. Hill Sherif of Middlesex, 7 Taunt Rep. 8.

livered, where it appeared at the trial, that in a conversation between the plaintiff and defendant, the former asserted that he had delivered the goods by one C., and the defendant replied, "If C. will say, he did deliver the goods, I will pay for them," the plaintiff was allowed to give in evidence C.'s answer respecting the matter referred to him.(1) In the case of Fabrigas v. Mostyn, a point arose, which may serve as another example to illustrate the rule here laid down. (2) A witness, who had been employed by the defendant, to convey certain proposals to the plaintiff, explained them to him by an interpreter, from whom also he received the answer the question was, whether the words of the interpreter could be given in evidence by the witness, as the answer of the plaintiff: or whether the interpreter himself ought to be called, as the witness understood neither the questions put to the plaintiff, nor the answer made by him. But Mr. Justice Gould ruled that the evidence of the witness was clearly admissible, and sufficient. Here the interpreter was the accredited agent of the parties, acting within the scope of his authority, and in the execution of his agency.

:

It must be remembered, that the cases, in which the declarations of an agent have been admitted against the principal, are exceptions to that general rule, which requires evidence to be given upon oath and the exception is confined to such statements, as are made by him, either at the time of his making an agreement about which he is employed, or in acting within the scope of his authority. "Except in one or other of these ways, (said the Master of the Rolls in Fairlie v. Hastings(3), I do not see how they can be evidence against the principal:" and therefore in that case, (where the fact, sought to be established, was, that a bond had been ex

(2) 11 St. Tr. 171.
(3) 10 Ves. 128.

(1) Daniell v Pitt, 1 Campb 366.; P. C. 145. 6 Esp. N. P. C. 74. S. C. Williams v lones, 1 Camph. 364. Brock v Kent, do. n. 306. Bart v Palmer, 5 Esp, N.

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