Aza v. Eitlinger

1 Ant. N.P. Cas. 99

Opinion

But Thompson, J.,

said the testimony was altogether inadmissible.

(1)

Slosson, Emmet, and Colden, for the plaintiffs.

Bleecker and Hoffman, for the defendant.

The parties seem to have acquiesced in this decision. There are, however, cases which give, at least, a plausible support to the plaintiff's opinion. The admissions, attempted to be given in evidence, related to the act for which the defendant was liable, and were made while her agents were in the performance of the act. In such cases, the admissions of agents have been received as evidence against their principals.

Thus, in North v. Miles, et al., (1 Campbell’s N. P. 389,) in an action against the sheriff, for a false return, the plaintiff offered to prove, by acknowledgments made to the attorney in the suit, by the officer deputized by the sheriff, that he might have arrested the defendant. This testimony being objected to, on this ground among others, that the officer might be called as a witness, lord Ellenborough decided, that the bailiff’s general conversation with an indifferent person, would not be evidence against the sheriff; but what he said when remonstrated with by the plaintiff’s attorney, must be considered as part of his act touching the execution of the writ, for which the defendant was liable, lord Ellenborough then lays down this general rule, that when a thing is carried on by a quasi principal, what he says in the course of the transaction, has been held on great consideration, to be evidence against those he represents.

So again in the case of Bowsher v. Calley, in a note to the preceding case. In an action against the sheriff for an escape, the admissions of the officer, concerning the custody of the debtor, were received in evidence by the same judge, upon the principle that what he had said at the time was part of the act for which the sheriff was responsible. These cases are recognized and adopted in Mott et al. v. Kip, 10 Johns. 478.