Samuel Woods versus Franklin Clark, 24 Pick. 35

Morton J. delivered the opinion of the Court. Several questions of evidence have arisen in this case, which we have considered. 1. The two letters of March 30th and 31st, being in the handwriting of the captain, are genuine documents and must be presumed to be what they purport to be. We are not at liberty to conjecture that they were made subsequently to the transaction to which they refer and antedated for fraudulent purposes. If the plaintiff would impeach them, the burden of proof is upon him to show the fabrication of the fraud. 2.

Being the letters of the captain, written when they bear date, they are competent evidence against the plaintiff. It is admitted, that a contingency had occurred, which authorized the captain to sell the vessel. The general rule is, that the acts and declarations of an agent while executing his agency and while acting within the scope of his authority, are in law die acts and declarations of the principal. And being a part of the transaction and essential to a full understanding of it, they are competent evidence for either party. 1 Phil. Ev. (7th ed.) 100 ; 2 Stark. Ev. 60.

There is no foundation for the distinction suggested by the plaintiff’s counsel, between an agency created by the operation of law, and one created by the direct acts of the parties. In both cases the source of the authority is the principal.' Where the agency grows out of the relation of the parties, and is called into action by some unlooked for contingency, it is the principal who creates the relation and assents to all its legal incidents ; and thus confers the power upon the agent, to perform all such acts as, in any event, the law or his duty may require of him.

It is true that the acknowledgments of the agent can never be evidence against his principal. He has no authority to bind his principal by admissions. His declarations are only received when they are a part of the res gestee and because, being a part of the transaction, they are necessary to a proper understanding of it. Subsequent declarations are mere hearsay. 1 Phil. Ev. (7th ed.) 101 ; 2 Stark. Ev. 60 ; Palethorp v. Furnish, 2 Esp. Rep. 511, note ; Helyear v. Hawke, 5 Esp. Rep. 74 ; Peto v. Hague, ibid. 135 ; Alexander v. Gibson, 2 Campb. 555 ; Fairlie v. Hastings, 10 Ves. 123; Langhorn v.

Allnutt, 4 Taunt. 511 ; Blight v. Ashley, 1 Peters’s C. C. R. 15 ; Meade v. McDowell, 5 Binney, 195 ; Leeds v. Mar. Ins. Co. of Alexandria, 2 Wheaton, 380 ; Thallhimer v. Brinckerhoff, 4 Wendell, 394 ; Hubbard v. Elmer, 7 Wendell, 446 Rossiter v. Rossiter, 8 Wendell, 494 But this rule does not confine the declaration to the point of time when the contract of sale is completed. It embraces acts done, after the bargain is closed, in preparing the necessary evidence of the sale and giving instructions for that purpose, in the delivery ol the property, and other acts net essary to complete the transfer.

It also looks back to the preparations for the sale; and includes all the preliminary negotiations ; such as making offers and proposals, and returning answers to them when made by the other party And, whatever is done in exposing the property to sale, by auction or otherwise, in advei tising it when necessary, in directions to the auctioneer when an auction is resorted to, in the employment of servants, to exhibit the property and to make all the usual and proper arrangements for the sale, is incidental to the power to sel!, and comes wdthin the rule. Both the letters are embraced by the above principles.

The first one was written with a direct vrew to the sale, and preparatory to it. It had immediate relation to the sale. And although the act itself might be improper and injurious to the plaintiff, yet upon the question whether any sale was made at all, it has a proper and important bearing. Suppose that while in the act of selling, the captain had withdrawn the property and stopped the sale, could the principal hold the last bidder as the purchaser, and exclude the refusal of the captain to sell ?

It would avail him very little to say that his agent was authorized to sell, but not to withdraw, and therefore the declarations of withdrawal were unauthorized and not evidence against the principal. The second letter was written on the very day of the proposed sale and before it was completed by the delivery of possession. It was so interwoven with the acts of the agent in attempting to sell, that it may fairly be deemed a part of the res geste. Besides, it related to the management and the care of the vessel, which are within the ordinary authority of the captain.

If he personally had retained possession of the vessel, broke her up and disposed of the materials, instead of delivering her to the supposed purchaser, it would be competent and strong evidence to show that the latter ought not to be holden to pay for her. Now if he could do this himself, he might employ another to do it. 3. The captain’s declarations to Lord some time after the sale, are too remote. They are no part of the negotiations or preparations for the sale. It may not be easy to draw the precise line, but these declarations are manifestly distinguishable from the letters and clearly inadmissible.

They are the mere acknowledgments of the agent. Maesters v. Abraham, 1 Esp. R. 375 ; Bauerman v. Radenius, 7 T. R. 665. 4. The deposition of Garret, which was returned without any commission or interrogatories, was properly rejected. It is true that we have a discretion in relation to the admission of' depositions taken out of the State. St. 1797, c. 35, § 6. But this discretion is directed and regulated by standing rules, which are a law to a judge at nisi prius. Besides, if it be in the discretion of the presiding judge, it is not open to revision by the whole Court.

This deposition not having been taken according to the spirit or import of the rules, was properly rejected. It may have been fairly taken, but to admit depositions taken in this form, would open a door to dangerous practicos. The commission and the interrogatories are indispensable to show that it was taken by the proper person and in a pioper manner. 5. The objection to the admission of the order drawn by the master on the defendant, at Boston, cannot prevail.

If the master had brought home an anchor, sails, &c., his agency would have continued, so far as concerned those articles, until they were delivered in specie to the owner, or sold and the proceeds paid over. So the drawing of this order for the balance of the proceeds of the materials saved and disposed of by the defendant, was before the master had ceased to be agent, and was competent evidence as

an act done within the scope of his authority. Judgment on the verdict.