them may be given in evidence against both (1). So, in an action by several partners against the defendant for the nonperformance of an agreement, a declaration by one of the partners, that the goods, to which the agreement related, were his separate property, is evidence against all the plaintiffs suing as upon a joint contract (2). The rule has even been extended in actions so far, as to admit the declarations of one partner to be evidence against another, concerning joint contracts and their joint interest, although the person, who makes such declarations, is not a party to the suit: as where, in an action by a creditor against some of the partnership firm, the answer of another partner to a bill filed by other creditors was received in evidence against the defendants, not indeed to prove the partnership, but, that being established, as an admission against those, who are as one person with him in interest (3). And the admission of a partner, though not a party to the suit, is evidence as to joint contracts against any other partner, as well after the determination of the partnership as during its continuance. (4) This is the rule respecting admissions in the case of joint contracts, or where several persons have one and the same interest in the subject matter. But the same rule cannot be applied to actions of trespass or to criminal proceedings. In an action of trespass against several defendants, an admission by one of the defendants is not evidence against the others to prove the fact of their being co-trespassers, and, even where that fact is fully established, it seems very doubtful, whether any admissions or declarations made by one of the defendants, as to the joint motives or designs of the party, can be received as evidence against the others, except so far as they accompany the act, and may be con (1) Vicary's case, Gilb. Ev. 51. (2) Lucas and others v. De la Cour, I Maule & Sel. 249. (3) Grant v. Jackson, Peake, N. P. C. 203. Wood and others v. Braddick, 1 Taunt. 104. And see Whitcomb v. Whiting, 2 Doug. 652. Jackson v. Fairbank, 2 H. BL 340. Thwaites v. Richardson, Peake, N. P C. 16 (4) Wood and others v. Braddick, I Taunt. 104. sidered The statement of an agent. sidered as forming a part of the res gesta. Where several persons are proved to have combined together for the same illegal purpose, any act done by one of the party, in pursuance of the original concerted plan, and with reference to the common object, is in the contemplation of the law the act of the whole party (1), and therefore the proof of such act by eye-witnesses would be evidence against any of the others, who were engaged in the same conspiracy; and further, any declarations made by one of the party at the time of doing such illegal act scem not only to be evidence against himself, as tending to determine the quality of the act, but to be evidence also against the rest of the party, who are as much responsible, as if they had themselves done the act. But what one of the party may have been heard to say at some other time, as to the share which some of the others had in the execution of the common design, or as to the object of the conspiracy, cannot, it is conceived, be admitted as evidence to affect them on their trial for the same offence. It has been solemnly decided, as will be shewn in treating of the admissibility of confessions, that a confession is evidence only against the person himself who confesses, not against other persons, although they may have been proved to be his accomplices. The statement or representation of an agent in making an agreement, or in doing an act within the scope of his authority, is evidence against the principal himself, and equivalent to his own acknowledgement (2): for what the agent says may be explanatory of the agreement, or determine the quality of the act which it accompanies, and must therefore be as binding on the principal as the act or agreement itself. To prove such a representation, the opposite party is not obliged to call the agent, but may establish it by other evidence. Thus, what an agent says at the time of a sale, which he is employed to make, is evidence as part of the transaction of selling. But the principal is not (1) R. v. Stone, 6 T. R. 527. (2) See the judgment by the Master of the Rolls in Fairlie v. Hastings, 10 Ves. 127. bound bound by a representation of the agent at another time (1). So it should seem, if a person buys goods, and directs the vendor to deliver them to an agent employed by him to receive them, the purchaser would be bound by the receipt of his agent given at the time of delivery; but not by any subsequent acknowledgement. In the case of Biggs v. Laurence (2), which was an action for goods sold and delivered, Mr. Justice Buller admitted a written paper, by which the defendant's agent acknowledged the receipt of the goods, as evidence against the principal; and on that evidence the plaintiff recovered. However, it was on one occasion (3) stated by counsel in argument, that Lord Kenyon since that case had frequently ruled the contrary, without its ever having been questioned: and this statement seems to have been acquiesced in by Lord Kenyon (4), who said, "that was not the point, upon which the case was afterwards argued or determined, on the motion for a new trial,” meaning the point, that such a receipt could be admitted in evidence. It does not appear, from the case of Biggs v. Laurence, whether the agent's acknowledgement, of having received the goods, was made at the time of delivery, or on what other occasion: though, upon this fact, according to the cases above cited, particularly the case of Fairlie v. Hastings, in which the subject was fully discussed by the Master of the Rolls, the admissibility of such evidence may be found materially to depend. In one case indeed (5), Lord Kenyon C. J. is said to have refused to admit an agent's letter as evidence of an agreement against the principal, holding, that the agent himself ought to be examined. "If the agreement," (said the Master of the Rolls (6), adverting to this case,) "was contained in the letter, I should have thought it sufficient, to prove that the letter was written by the agent: but, if the letter was offered as proof of the contents of a pre-existing agreement, then it was properly rejected." And the Court of Common Pleas lately decided after much argument, in the cases of Kahl v. Jansen (1), and Langhorn v. Allnutt (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 recognized 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 establishing 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. From analogy to the preceding case of agent and principal, 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, as part of the transaction in which he represents the defendant, and for which the defendant is responsible (4). The declaration of an under sheriff is not evidence against his principal, excepting so far as it constitutes a part of the res gesta; 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. (1) 4 Taunt. 565. (2) 4 Taunt. 511. and Reyner v. Pearson, 4 Taunt. 663. S. P. (3) 4 Taunt. 519. (4) Bowsher v. Cally, Sher. of Wilts. I Campb. N. P. C. 391, n. North v. Miles, Sher. of Mid. do. 389. Yahsley v. Doble, 1 Ld. Ray. 190. Kempland v. Macaulay, Peake, N. P. C. 65. On 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 (1), or employs an agent to make certain propositions respecting a transaction between himself and another (2), 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 delivered, 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 (3). In the case of Fabrigas v. Mostyn, a point arose, which may serve as another example to illustrate the rule here laid down. 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 (4): 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 con (1) Daniell v. Pitt, 1 Campb. N. P. C. 306. (2) Gainsford v. Grammar, 2 Campb. N. P. C. 9. (3) Daniell v Pitt, 1 Campb. N. P. C. 366; 6 Esp. N. P. C. 74, S. C. |