McCotter against Hooker, 8 N.Y. 497

Gardiner, J. The receipt was properly received in evidence. Wilgus, who drew it, and Haviland, who executed it, were both agents of the defendant. They are proved to be such by the testimony of Wilgus himself. The receipt was important to show a delivery, if for no other purpose. The receipt did not contain any contract, unless one is to be inferred from the delivery of the goods, marked fóf Chicago. If this is equivalent to the engagement to transport them to the place -of designation,- the contract as claimed by the plaintiff is established.

If, however, the instrument was merely an acknowledgement of the receipt of the goods distinguished by a particular direction, which is the plaintiff’s construction, then there was no written engagement to transport the goods to any place, and it was competent and proper that the agreement should be shown by parol. This will d ispose of the first two exceptions taken by the defendant, and in effect of the third and fourth also. It is immaterial whether the judge decided correctly or notin overruling the motion for a nonsuit at the time when it was made.

The subsequent testimony by Wilgus, removes all difficulty as to the agency of those who received the merchandise and contracted with the plaintiff; and the case was therefore properly left to the jury. The fifth exception, I think, ought not to prevail. The goods shipped had found their way back to New York in the spring of the following year in a damaged condition. McCotter, a witness, in company with the plaintiff, saw them at the warehouse, and subsequently informed the agent of the defendant of their condition.

In the course of the conversation, and as a part of it, the witness spoke of the arrangement of the previous fall, made in his presence with the same agent for their shipment. The reply of the agent, which went to account for the delay and the condition of goods, and their being found in New York instead of Chicago, their place of destination, was objected to by the defendant, and the exception to the ruling of the court constitutes the fifth exception.

I think that the declaration of the agent in relation to property entrusted to him in the usual course of business, as to the reasons of the delay in the transportation, and even as to the contract made with him in reference to the carriage, admissible, as a part of the res gestee of the particular agency.

The principal resided at Troy; the agent in New York, for the receipt and shipment of goods, with authority to contract, must necessarily have the right to answer .questions as to all matters fairly within the scope of the power exercised by him. in the ordinary routine of the duties devolved upon him by his principal. The objection in this instance was general and would prohibit, if it prevailed, the agent for assigning any reason or excuse for the non shipment of goods for six months, or from answering any inquiries upon the subject.

The judge excluded certain evidence taken under the act of 1848, which is the subject of another exception. The trial was in 1850, when the law of 1848 had been repealed. As the common law recognizes no testimony except such as is delivered in open court, the defendant could not avail himself of these depositions unless he had acquired a vested interest in them, which placed them beyond the interference or control of the legislature.

Where evidence arises from a contract incidentally, it can not be abrogated by a statute law, without impairing the contract, which is prohibited by the constitution of the United States. That legislation which regulates the manner in which the testimony of witnesses is to be taken and received, is a matter pertaining to the remedy in suits at law or in equity, over which' the states have exclusive power, so far as it respects their own courts.

In this case, although the examination was had and the testimony taken in pursuance of an existing law, yet the same statute directed and authorized the depositions to be read in open court, as evidence in the cause. By the repeal, this last provision was as though it had never' existed, (Dwarris on Stat. 676,) and the defendant consequently was thrown back upomhis common law remedy of viva voce examination. The repeal. deprived the defendant of no right; it did not shut out the evidence by particular facts, but regulated the manner in which it should be given to the jury. In the case of Hitchcock v.

Way, (6 Adolp. & Ellis, 943,) when issue was joined, the defendant had a perfect defence, under

an act avoiding the bill of exchange when given for a gaming transaction. It was held that this -was not taken away by a- subsequent statute in favor of bona fide holders. In other words i-t was held, and very properly, that a subsequent statute, even in England, should not be construed as creating a contract, where none existed at the commencement of the. suit, or at the time when issue was. joined between the parties. Such a law would, I apprehend, be unconstitutional with us.

But such was not the law of which the defendant complains: it touches no right: the same facts which exonerated him from liability to the plaintiff, would have the same effect under the acts of 1849 and 1850. The judgment should be affirmed. Jewett, Johnson, Taggart and Morse, JJ., concurred with Judge Gardiner. Euggles, Ch. J., gave no opinion. Mason, J., did not hear the argument.