388

ACKNOWLEDGMENT OF DEBT IN NAME OF FIRM.

contended that a signature by one of several partners, using the name of the firm, is sufficient to take a case out of the statute as to all the partners, in a transaction in which all are interested, inasmuch as a partnership name is the name of each and every member of the firm. In the case where this subtle and forlorn argument was employed, it became unnecessary to decide the question, and the Court, therefore, declined to express an opinion upon it (); but as a ruling in its favour would manifestly fritter away and neutralize the provisions of a very beneficial enactment, it is presumed that, if the point should again be raised, the Court would not hesitate to negative the validity of the objection.

§ 410. The question has been much discussed, and is still undecided, whether the rule which renders partners in ordinary trading concerns responsible for the acts and declarations of each other, is applicable in its full extent to the case of shareholders in joint-stock companies, where the deed of settlement contains no express regulation on the subject (a).

§ 411. A kindred principle governs in regard to the declarations of agents. 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, whom he represents. And "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" (b). They are of the nature of original evidence and not of hearsay; the representation or statement of the agent, in such cases, being the ultimate fact to be proved, and not an admission of some other fact (c). But, it must be remembered, that 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

(2) Clark v. Alexander, 8 Scott, N. R. 160, 163.

(a) See Harrison v. Heathorn, 6 M. & Gr. 81, 135, 136. (b) Story, Agency, § 134.

(c) 1 Ph. Ev. 381.

DECLARATIONS OF AGENTS, WHEN ADMISSIBLE.

389

during the continuance of the agency, in regard to a transaction then depending, et dum fervet opus. It is because it is a verbal act and part of the res gestæ, that it is admissible at all; and, therefore, it is not necessary to call the agent himself to prove it (b); but wherever what he did is admissible in evidence, there it is competent to prove what he said about the act, while he was doing it; and it follows, that where his right to act in the particular matter in question has ceased, the principal can no longer be affected by his declarations, they being mere hearsay (c). Thus, what a servant, employed to sell a horse, states respecting it at the time of sale, will bind the master, but his declarations or acknowledgments at any other time, whether made to the purchaser or to a stranger, will not be received (d). So, if a letter written by an agent forms 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 properly be rejected, though addressed to the principal himself (e); unless the principal has replied to it, or otherwise adopted and acted upon it, in which case the agent's letter will be received as explanatory of the principal's conduct (f).

§ 412. The law upon this subject has been well explained by Sir William Grant, in the case of Fairlie v. Hastings (g). "As a

(b) Doe v. Hawkins, 2 Q. B. 212; Sauniere v. Wode, 3 Harrison's R. 299. (c) Fairlie v. Hastings, 10 Ves. 123, 126, 127, per Sir Wm. Grant; Garth v. Howard, 8 Bing. 451; Langhorn v. Alnutt, 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' Bank of Alexandria v. Bank 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; Bank of Monroe v. Field, 2 Hill, R. 445; Story, Agency, § 134–137.

(d) Allen v. Denstone, 8 C. & P. 760, per Erskine, J.; Helyear v. Hawke, 5 Esp. 72, per Lord Ellenborough. See also Peto v. Hague, 5 Esp. 134, per Lord Ellenborough.

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

(f) Coates v. Bainbridge, 5 Bing. 58.

(g) 10 Ves. 126, 127.

390

DECLARATIONS OF AGENTS, WHEN ADMISSIBLE.

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 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 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."

§ 413. As the rule admitting the declarations of the agent is founded upon his legal identity with the principal, these bind only so far as there is authority to make them. When the authority is express, no difficulty can well arise; 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 be received in

THREE CLASSES OF DECLARATIONS ORIGINAL EVIDENCE. 391

evidence against the husband (h); but her acknowledgments 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 (i). 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 (j).

§ 414. We have now seen that there 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 gesta. All these classes are involved in the principle of the last, and have been separately treated merely for the sake of greater distinctness.

(h) Clifford v. Burton, 1 Bing. 199; 8 Moore, 16, S.C.

(i) Meredith v. Footner, 11 M. & W. 202.

(j) Garth v. Howard, 8 Bing. 451.

392

EXCEPTIONS TO RULE REJECTING HEARSAY.

CHAPTER VIII.

OF MATTERS OF PUBLIC AND GENERAL INTEREST.

§ 415. HAVING thus illustrated the nature of hearsay evidence, shown the reasons on which it is generally excluded, and explained the distinction between such evidence and that which is original, we are next to consider the cases in which the rule rejecting 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 absence of better evidence, and from the nature and necessity of the case, embrace most of the points of inconvenience, that would result from a stern and universal application of the rule, and thus remove the principal objections which have been urged against it. We now propose to discuss the exceptions in their order.

§ 416. And first, as to matters of public and general interest. The admissibility of hearsay evidence in this class of cases 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 excludes the probability 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; that reputation can hardly exist without the con