not to give, will, as it seems, bind the master;' but the servant's declarations or acknowledgments at any other time, whether made to the purchaser or to a stranger, will not be received. So, if a letter written by an agent form the whole or part of an agreement, which by the course of his business he was authorised to make, it will be admissible against the principal; but if it be offered as proof of the contents of a pre-existing contract, or if it contain an account of transactions already performed, it will probably be rejected, though addressed to the principal himself;3 unless the principal has replied to it, or has otherwise adopted or acted upon it, in which case the agent's letter will be received as explanatory of the principal's conduct."

§ 604. The law upon this subject has been well explained by Sir 540 William Grant, in the case of Fairlie v. Hastings.5 "As a general proposition," said he, "what one man says, not upon oath, cannot be evidence against another man. The exception must arise out of some peculiarity of situation, coupled with the declarations made by one. An agent may undoubtedly, within the scope of his authority, bind his principal by his agreement; and in many cases by his acts. What the agent has said may be what constitutes the agreement of the principal; or the representations or statements made may be the foundation of, or the inducement to, the agreement. Therefore, if writing is not necessary by law, evidence must be admitted to prove that the agent did make the statement or representation. So, with regard to acts done, the words with which those acts are accompanied frequently tend to determine their

private owner, intrusted to sell a horse, not at a fair or public mart, but on some one particular occasion, has no implied authority to bind his master by a warranty, id. 223; S. C. nom. Brady v. Todd, 9 Com. B., N. S. 592. See Miller v. Lawton, 3 New R. 430; 15 Com. B., N. S. 834, S. C.

1 Howard v. Sheward, 36 L. J., C. P. 42; 2 Law Rep., C. P. 148, S. C.

2 Allen v. Denstone, 8 C. & P. 760, per Erskine, J.; Helyear v. Hawke, 5 Esp. 72, per Ld. Ellenborough. See, also, Peto v. Hague, 5 Esp. 134, per Ld. Ellenborough; Gt. West. Ry. Co. v. Willis, 34 L. J., C. P. 195; 18 Com. B., N. S. 748, S. C.

3 Fairlie v. Hastings, 10 Ves. 128; Langhorn v. Allnutt, 4 Taunt. 511; Kahl v. Jansen, id. 565; Reyner v. Pearson, id. 662.

Coates v. Bainbridge, 5 Bing. 58.

5 10 Ves. 126, 127.

quality. The party, therefore, to be bound by the act, must be affected by the words. But, except in one or the other of those ways, I do not know how what is said by an agent can be evidence against his principal. The mere assertion of a fact cannot amount to proof of it; though it may have some relation to the business, in which the person making that assertion was employed as agent * * * The admission of an agent cannot be assimilated to the admission of the principal. A party is bound by his own admission; and is not permitted to contradict it. But it is impossible to say that a man is precluded from questioning or contradicting anything any person has asserted as to him, respecting his conduct or his agreement, merely because that person has been an agent of his. If any fact, material to the interest of either party, rests in the knowledge of an agent, it is to be proved by his testimony, not by his mere assertion."

§ 605. As the rule admitting the declarations of the agent is 541 founded upon his legal identity with the principal, they bind only so far as the agent had authority to make them.' The declarations, therefore, and acts of an agent cannot bind an infant, because an infant cannot appoint an agent; and, consequently, if an infant, even by letter of attorney, appoints a person to make a lease, he will not be bound thereby, neither will his ratification bind him; but the lease of an infant to be good, must be his own personal act.' When, however, the principal is of full age, and the authority is express, he will be bound by the declarations and acts of his agent, and no difficulty can well arise in applying this rule; but questions of much nicety will often occur, where power to make an admission is sought to be inferred by implication from an authority to do a certain act. A few examples may furnish some guide upon this subject. Thus, where a wife is authorised, in her husband's absence, to carry on the business of his shop, her admissions, made on application to pay for goods previously delivered at the shop, will

1 See Faussett v. Faussett, 7 Ec. & Mar. Cas. 93-95; Hogg v. Garrett, 12 Ir. Eq. R. 559.

2 Doe v. Roberts, 16 M. & W. 778, 780, 781, per Parke, B. See Hargrave v. Hargrave, 12 Beav. 408.

.

be received in evidence against the husband;' but her acknowledg ments of an antecedent contract for the hire of the shop, or her agreement to make a new contract for the future occupation of it, will be rejected, as it cannot be necessary that the wife should have this extensive power of binding her husband, for the mere purpose of conducting the business of the shop. So, if goods were deposited with a pawnbroker in the ordinary course of his business, a declaration of the shopman that his master had' received the goods, would probably be admissible against the master, because it might well be assumed that the shopman was authorised to answer any inquiries respecting the goods, made by persons interested in them; but if the admission related to a transaction unconnected with the immediate business of the shop,-as, for instance, if it referred to the loan of several hundred pounds on a single pledge at five per cent. interest, it would not be received. Again, although the solicitor of a judgment creditor may fairly be assumed to have acted as his client's agent in directing the issue of a fi. fa., because the taking such a step might be essentially necessary for the benefit of the client, yet the law would not consider that he was acting within the scope of any implied authority, were he to give to the sheriff special instructions to seize particular goods.*

3

§ 606. The foregoing observations will have shown that there § 542 are three classes of declarations, which, though usually treated under the head of hearsay, are, in truth, original evidence; the first class consisting of cases where the fact that the declaration was made, and not its truth or falsity, is the point in question; the second including expressions of bodily or mental feelings, where the existence or nature of such feelings is the subject of inquiry; and the third embracing all other cases, where the declaration offered in evidence may be regarded as part of the res gestæ. All these classes are involved in the principle of the last, and have been separately treated merely for the sake of greater distinctness.

1 Clifford v. Burton, 1 Bing. 192; 8 Moore, 16, S. C.

2 Meredith v. Footner, 11 M. & W. 202.

3 Garth v. Howard, 8 Bing. 451.

Smith v. Keal, L. R., 9 Q. B. D. 340, per Ct. of App.; 51 L. J., Q. B. 487, S. C., in court below, nom. Keal v. Smith.

5 Gr. Ev. 123, in great part.

CHAPTER VIII.

MATTERS OF PUBLIC AND GENERAL INTEREST.

§ 607.' HAVING illustrated the nature of hearsay evidence, shown 543 the reasons on which it is generally excluded, and explained the distinction between such evidence and that which is original, it will next be convenient to consider the cases in which the rule re

jecting hearsay has been relaxed. These cases may be conveniently divided into six classes:-first, those relating to matters of public and general interest; secondly, those relating to pedigree; thirdly, those relating to ancient possession; fourthly, declarations against interest;-fifthly, declarations in the course of office or business; and lastly, dying declarations. It will be observed, that these exceptions, which are allowed only on the ground of the assumed absence of better evidence, and, as it were, from necessity, meet most of the inconveniences that would result from a stern and universal application of the rule, and thus remove the principal objections which have been urged against it. The exceptions will now be discussed in their order.

§ 608. And first, the admissibility of hearsay evidence respect- 8 544 ing matters of public and general interest, appears to rest mainly on the following grounds:-that the origin of the rights claimed is usually of so ancient a date, and the rights themselves are of so undefined and general a character, that direct proof of their existence and nature can seldom be obtained, and ought not to be required; that in matters, in which the community are interested, all persons must be deemed conversant; that as common rights are naturally talked of in public, and as the nature of such rights much lessens the probability, if it does not exclude the possibility, of individual bias, what is dropped in conversation respecting them may be presumed to be true; that the general interest which belongs to the subject would lead to immediate contradiction from others, if the statements proved were false;

1 Gr. Ev. 127, in part.

that reputation can hardly exist without the concurrence of many parties unconnected with each other, who are all more or less interested in investigating the subject; that such concurrence furnishes strong presumptive evidence of truth; and that it is this prevailing current of assertion which is resorted to as evidence, for to this every member of the community is supposed to be privy, and to contribute his share.1

3

§ 609. In speaking of matters of public and general interest, the 545 terms "public" and "general" are sometimes used as synonyms, meaning merely what concerns a multitude of persons. But, in regard to the admissibility of hearsay testimony, a distinction has been taken between them; the term public being strictly applied to that which concerns every member of the state; and the term general being confined to a lesser, though still a considerable, portion of the community. This distinction should be carefully attended to, because in matters strictly public, such, for example, as a claim of highway or a right of ferry, reputation from any one appears to be receivable; and although declarations would be almost worthless, unless made by persons who, by living in the neighbourhood, or by frequently using the road or ferry, or the like, are shown to have had some means of knowledge; yet, the want of such proof of their connexion with the subject in question seems to affect the value only, and not the admissibility, of the evidence. If, however, the right in dispute be simply general; that is, if those only who live in a particular district, or adventure in a particular enterprise, are interested in it, hearsay from persons wholly unconnected with the place or business would be not only valueless, but probably altogether inadmissible.*

1 Wright v. Doe d. Tatham, 7 A. & E. 360, 361, per Coltman, J.; S. C. 4 Bing. N. C. 528, per Alderson, B.; Moorwood v. Wood, 14 East, 239, n., per Ld. Kenyon; Weeks v. Sparke, 1 M. & Sel. 686, per Ld. Ellenborough; Berkeley Peer., 4 Camp. 415, 416, per Sir J. Mansfield; R. v. Bedfordshire, 4 E. & B. 542, per Ld. Campbell, adopting almost the language above employed. 2 Gr. Ev. 128, in part.

3 Pim v. Currell, 6 M. & W. 234.

Crease v. Barret, 1 C. M. & R. 929, per Parke, B. By the Roman law, reputation, or common fame, seems to have been admissible in evidence in all cases; but it was not generally deemed sufficient proof, and, in some cases,