they accompany and explain acts, for which the others are responsible; but not when they are in the nature of narratives, descriptions, or subsequent confessions. § 595. On a somewhat similar principle, papers found, after the 532 apprehension of a prisoner, on the person or at the lodgings of a co-conspirator, will be admissible or not against the accused, according as there is or is not evidence to show that they existed before he was taken into custody. If no such evidence can be given, the papers will be rejected, as the prisoner cannot be responsible for acts or writings, which possibly may not have existed until after the common enterprise was, so far as he was concerned, at an end;' but if the previous existence of the papers be established, either by direct proof, or by strong presumptive evidence, the objection to their admissibility can no longer prevail.2 § 598. The question how far unpublished writings upon abstract 533 subjects, which, though of a kindred nature with the crime charged, have no direct relation to it, are admissible in evidence, may admit of some doubt. In the case of Algernon Sidney, a treatise containing speculative republican doctrines, which not only was unpublished and unconnected with the treasonable practices of which he was accused, but which appeared to have been composed several years before the trial, was, under the auspices of Judge Jefferies, admitted in evidence; but subsequent times have regarded this trial as a judicial murder, and such proof would assuredly be rejected at the present day. If, indeed, the papers were closely connected with the nature and object of the alleged crime, they would probably, though unpublished, be considered in strict law admissible, without any positive proof that they were intended to be used in furtherance of the design; and if such 3 1 R. v. Hardy, 24 How. St. Tr. 718, 731. 2 R. v. Watson, 32 id. 337-342, 347-350; 2 Stark. R. 140, 141, S. C. See R. v. M'Cafferty, I. R., 1 C. L. 363. There, acts of insurrection committed after the arrest of the prisoner, but in consequence of instructions given by him before he was apprehended, were held to be admissible in evidence on a charge of conspiracy to raise rebellion. 39 How. St. Tr. 854-859; observed upon by Abbott, J., in R. v. Watson, 2 Stark. R. 147; and in Fost. C. L. 198. proof could be given, they would doubtless be received.' Where conversations of co-conspirators or accomplices are proved, the effect of the evidence will of course depend upon the surrounding circumstances, such as the fact and degree of the prisoner's attention to what was said, and his approval or disapproval thereof." 3 § 597. The declarations of co-trespassers in civil actions are ₫ 534 governed by the same rules; that is, if several are jointly sued, the declarations of each, which constitute parts of the res gestæ, are admissible against all; while those which amount to mere admissions, or narratives of past events, can only be received against the party making them.' In one case," which was an Baron Garrow admitted the action for false imprisonment, Mr. § 598. This doctrine extends to all cases of partnership. When § 535 ever any number of persons are associated together in the joint prosecution of a common enterprise or design, as in commercial partnerships, and similar cases, the act or declaration of each member, in furtherance of the common object of the association, is the act or declaration of all. By the very act of association each partner is constituted the agent of the others, for all purposes 1 R. v. Watson, 32 How. St. Tr. 354-361; 2 Stark. R. 141, S. C. 2 R. v. Hardy, 24 id. 703, per Eyre, C. J. 3 See R. v. Hardwick, 11 East, 585, per Ld. Ellenborough; Powell v. Hodgetts, 2 C. & P. 432, per Garrow, B.; North v. Miles, 1 Camp. 389, per Ld. Ellenborough; Bowsher v. Calley, id. 391, n. per id.; 1 Ph. Ev. 204. Daniels v. Potter, M. & M. 501, per Tindal, C. J. 5 Wright v. Court, 2 C. & P. 232. Daniels v. Potter, M. & M. 503, per Tindal, C. J. 7 Gr. Ev. 112, in part. within the scope of the partnership concern;' unless, under the special circumstances of the case, an intention can be inferred by the jury, that a particular act should not be binding without the direct concurrence of each individual partner. While the firm thus created exists, it speaks and acts only by the several members; but when that existence ceases by dissolution, the subsequent acts of the individual members are binding on themselves alone,' except so far as may have been otherwise agreed upon by the articles of association or dissolution, or as the acts relate to the previous business of the firm. This last exception may be illustrated by the case of Pritchard v. Draper," where Lord Brougham held, that the admission of one partner, as to the payment, subsequently to a dissolution, of a debt due to the firm, was admissible against the other partners. 5 § 599. In the case just cited, the party making the admission 536. was at the time, so far as the debt in question was concerned, jointly interested with the parties against whom his statement was tendered in evidence.' Had not such been the case, the decision would probably have been the other way; for where a bill was filed to set aside a bond given to a banking firm on the ground of fraud, and it appeared that before the commencement of the suit, the partner, who originally managed the transaction, had retired from the firm, had become a certificated bankrupt, and, according to his 1 Sandilands v. Marsh, 2 B. & A. 673, 678, 679; R. v. Hardwick, 11 East, 589; Fox v. Clifton, 6 Bing. 792; Nicholls v. Dowding, 1 Stark. R. 81; Hodenpylv. Vingerhoed, Chitty, Bills, 627, n. q; Van Reimsdyk v. Kane, 1 Gall. 630, 635; Coit v. Tracy, 8 Conn. 268. Ante, ? 185. 2 Latch v. Wedlake, 11 A. & E. 959, 965, 966. 3 Wood v. Braddick, 1 Taunt. 105, per Sir J. Mansfield; Petherick v. Turner, cited id.; Kilgour v. Finlyson, 1 H. Bl. 155. * Burton v. Issitt, 5 B. & A. 267; Bell v. Morrison, 1 Pet. 371. 5 Wood v. Braddick, 1 Taunt. 104. See Parker v. Morrell, 2 Phill. 453. 61 Russ. & Myl. 191, 199, 200. See Loomis and Jackson v. Loomis, 3 Deane, Verm. R. 198, where it was held generally, that the admissions of one partner, made after the dissolution of partnership, in regard to the business of the firm previously transacted, are admissible as evidence against all the partners. See and compare the observations of Ld. Cottenham, in Parker v. Morrell, 2 Phill. 464, 465; of the Reporter in S. C. 464, n. b; and of Cresswell, J., in S. C. on issue tried at Nisi Prius, 2 C. & Kir. 603. own admission, had long ceased to have any interest in the bond, the court held that the answer of this man, who had been made a defendant as executor of another partner, and who admitted the fraud, was not receivable in evidence against his co-defendants, the continuing partners.1 2 § 600. It deserves notice, that neither a written acknowledgment 537 of a partnership debt by one member of a firm, nor a written promise by him to pay it, nor even actual payment by him of the interest, or part payment of the principal due, whether made during the partnership, or after the dissolution, will take the case out of the Statute of Limitations, as against the other members; but this, as will hereafter appear,-is owing to the salutary operation of Lord Tenterden's Act of 1828,5 as extended by the Mercantile Law Amendment Act of 1856. § 601. It is true that Lord Tenterden's Act, in the enactment & 538 just referred to, speaks merely of joint contractors, and does not in terms mention partners; and consequently here,—as in other cases where the language of the Legislature is in the remotest degree doubtful,—a distinction has been attempted to be drawn between these two classes of persons, and it has been contended that a sig. nature by one of several partners, using the name of the firm, will take the case out of the statute as to all the partners, in a transaction in which all are interested, because a partnership name is the name of each and every member of the firm. In the case where this subtle and forlorn point was raised, the court found it unnecessary to express an opinion upon it; but as a ruling in its favour would manifestly fritter away the provisions of a very beneficial enactment, it is presumed that, if the objection should again be taken, the judges would not hesitate to negative its validity." 7 1 Parker v. Morrell, 2 Phill. 453; 2 C. & Kir. 599, S. C. 2 Bristow v. Miller. 11 Ir. Law R. 461; Watson v. Woodman, 20 Law Rep., Eq. 721; 45 L. J., Ch. 57; S. C. 3 Jones v. Ryder, 4 M. & W. 32; Hopkins v. Logan, 5 id. 248, per Parke, B. 19 & 20 V., c. 97, & 14. 'Clark v. Alexander, 8 Scott, N. R. 160, 163. 8 See Bristow v. Miller, 11 Ir. Law R. 461. 66 2 § 602.1 The declarations of agents are admissible against their 539 principals on grounds very similar to those which govern the declarations of co-partners. The principal constitutes the agent as his representative in the transaction of certain business. Whatever, therefore, the agent does in the lawful prosecution of that business, is the act of the principal; and as Mr. Justice Story observes, I where the acts of the agent will bind the principal, there his representations, declarations, and admissions, respecting the subject matter, will also bind him, if made at the same time, and constituting part of the res gesta." They are original evidence and not hearsay; and, not being regarded as verbal acts, they are receivable in evidence without calling the agent himself to prove them. Still, the admission of the agent cannot always be assimilated to the admission of the principal. The party's own admission, whenever made, may be given in evidence against him: but the admission or declaration of his agent binds him only when it is made during the continuance of the agency, in regard to a transaction then depending, et dum fervet opus. When the agent's right to interfere in the particular matter has ceased, the principal can no longer be affected by his declarations, any more than by his acts, but they will be rejected in such case as mere hearsay." 3 § 603. Thus, when a horse-dealer, or livery stable keeper, em- 539 ploys a servant to sell a horse, any statement made by him respecting the horse at the time of sale, even though it amount to a warranty of soundness, which the servant has been really ordered 6 Doe v. Hawkins, 2 Q. B. 212. * See Kirkstall Brewery Co. v. Furness Ry. Co., 9 Law Rep., Q. B. 468; 43 L. J., Q. B. 142, S. C.; Re Devala Prov. Gold Min. Co., L. R., 22 Ch. D. 593; 52 L. J., Ch. 434, S. C. 5 Fairlie v. Hastings, 10 Ves. 123, 126, 127, per Sir W. Grant; Garth v. Howard, 8 Bing. 451; Langhorn v. Allnutt, 4 Taunt. 519, per Gibbs, J.; Betham v. Benson, Gow, R., 45, per Dallas, C. J.; Mortimer v. M'Callan, 6 M. & W. 58, 69, 73; R. v. Hall, 8 C. &. P. 358, per Littledale, J.; The Mechanics' Bk. of Alexandria v. Bk. of Columbia, 5 Wheat. 336, 337; Hannay v. Stewart, 6 Watts, 487, 489; Stockton v. Demuth, 8 Watts, 39; Stewartson v. Watts, id. 392; Baring v. Clark, 19 Pick. 220; Bk. of Monroe v. Field, 2 Hill, R. 445; Story Agen. 22 134, 137. 6 Brady v. Tod, 30 L. J., C. P. 224, per Erle, C. J. But the servant of a |