The opinion of the court was delivered by
Bennett, J.
'We think the objection to the depositions of the Towsleys was not well taken. It is necessary that the certificate [38]*38of the magistrate who takes the deposition, should show truly in what cause it is to be used. Without an identity in this respect, it would be impracticable to sustain an indictment against the deponent for perjury. The plaintiffs on the record are set up to be “ a corporation duly established by an act of the legislature of the state of Connecticut, doing business at Hartford,” &c. Though it might not have been necessary to set up in the declaration by what authority the plaintiffs became a corporation, yet so far as this goes to give indentity to the plaintiffs, I should apprehend it could not be rejected as surplusage under the rules in pleading which empower a court to reject matter purely surplusage.
In the caption to the deposition the plaintiffs are described to be “ a corporation established in Massachusetts.” If this is to be taken as equivalent to describing them as a corporation created by the legislature of Massachusetts, it would seem difficult to make out that one and the same corporation is described in the record and in the deposition. But we think the more obvious construction to the certificate is simply, that Massachusetts was the place where the corporation was doing business. The expression is simply, “ established in the state of Massachusetts.” Had the expression been, "established and doing business in the state of Massachusetts,” no one could have hesitated as to the sense in which the word “ established ” was used, and to what it referred ; and we think, as it is used, the meaning is to be taken to be the same. There is no allusion in the certificate to the power creating the corporation. The expression is, “ established in the state of Massachusetts.” It is far more reasonable to consider the words “ in business” as being dropped or omitted after the word established, than to change the words from a passive sense, in which they seem to be used, to an active sense, and one implying action on the part of the government. If that had been the sense in which the word “ established” was intended to be used, it would have been followed no doubt, with the preposition by, denoting the agent by which the corporation vras established, instead of in, which, in the connection in which it is used, seems’ to be passive and to imply simply a state of being. The fact that in the writ the corporation is described as doing business in Hartford, Conn., and in the certifi[39]*39cate to the deposition, as established, that is, in business in the state of Massachusetts, can not, prima facie, destroy their identity. We may will take judicial notice, that a corporation may have more than one place of business.
It is claimed by the defendant that the plaintiffs were bound to put in the letter of Polhemous, or upon proof of its loss, to prove its contents before they could put in Batchelder & Towsley’s reply to it, of the 20th of September, 1851. It is true that in the case of Watson v. Moore, 1 C. & Kir. 626, it was held that where one party produces the letter of the opposite party, purporting to be in reply to a previous letter from himself, he is bound to call for and put in the letter to which it was an answer, as a part of his own evidence. But should that case govern this ? We think not. Batchelder & Towsley are not parties to this suit, and the plaintiffs have no means of compelling them to produce the letter of Polhemous. Batchelder is dead, and Towsley, who took the partnership papers, is out of the state, and it cannot be required of the plaintiffs that they should prove its contents. The defendant, if that letter is important to him as explaining or qualifying the letter of Batchelder & Towsley in answer to it, has the same means to procure the production of it, as the plaintiffs have.
The admissions of B. & T. were against their title to the goods, ■and of course it is to be taken against their interest. We apprehend that by a decided weight of authority; these admissions were admissible against this defendant upon the ground of privity, which denotes successive relationship to the same rights of property. The defendant has, by operation of law, succeeded sub modo to the rights of B. & T., and upon this question he stands upon the same ground as he would if he had been their vendee.
Notwithstanding the case of Hines et al. v. Soule, 14 Vt. 99, we are disposed to affirm the decision of the county court in this particular. That case has heretofore been considerably impugned, though perhaps not directly overruled. Admissions made by the assignor of a chattel or personal contract prior to the assignment, and when the assignee must recover through the title of the assignor, and succeeds only to that title as it stood at the time of the transfer, bind the assignee. So the declarations of an indorser of negotiable paper, indorsed after it is past due, made while he [40]*40was the holder of the paper and in disparagement of his right, are evidence against the indorsee. See 1 Greenl. Ev. and cases there cited ; sec. 189, 190.
The question was considered somewhat at length upon principle and authority, in the case in 14 Vt. It is of no consequence on this question, whether the declarant is living or not, or whether he is called as a witness or not.
The declarations are not to be treated as secondary evidence or as res inter alios acta, but inter eosdem acta, and as primary evidence.
The declarations made by Batchelder after the attachment, and offered by the defendant, were properly excluded. After declarations could not be given in evidence against the defendant, much less in his favor. It is now claimed for the first time, that they were competent to impeach his former declarations. It does not appear from the exceptions that they were offered with any such view, and we are to take it that they were offered and excluded as testimony in chief. If the party claimed them as impeaching testimony, he should have offered them with that view.
We think the court were right in regard to the effect which they gave to the testimony of Wires and Edgell, and that it could only go to impeach Plolton as a witness on the stand. It is claimed that Wires acted upon the faith of the declarations of Holton, as testified to by him and Edgell, in not surrendering up the property; and, therefore, whether true or false, the plaintiffs should be bound by them if the jury found he made them. The statements of Holton went to a transaction which was then entirely past, and were in no way connected with any act which Holton was then performing for the plaintiffs, if in fact, the declarations were made as is claimed by the defendant. To render the declarations of an agent admissible against his principal, they must be made in regard to a transaction then depending, and must be a part of the res gesta. In the case now before us, the most that can be claimed is an attempt upon the part of Holton to give an account of a past transaction.
We think there was no objection to the admission of the evidence relative to the bill of sale, as it is called, or the charge of the court. The case shows that evidence was given to prove a con[41]
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The opinion of the court was delivered by
Bennett, J.
'We think the objection to the depositions of the Towsleys was not well taken. It is necessary that the certificate [38]*38of the magistrate who takes the deposition, should show truly in what cause it is to be used. Without an identity in this respect, it would be impracticable to sustain an indictment against the deponent for perjury. The plaintiffs on the record are set up to be “ a corporation duly established by an act of the legislature of the state of Connecticut, doing business at Hartford,” &c. Though it might not have been necessary to set up in the declaration by what authority the plaintiffs became a corporation, yet so far as this goes to give indentity to the plaintiffs, I should apprehend it could not be rejected as surplusage under the rules in pleading which empower a court to reject matter purely surplusage.
In the caption to the deposition the plaintiffs are described to be “ a corporation established in Massachusetts.” If this is to be taken as equivalent to describing them as a corporation created by the legislature of Massachusetts, it would seem difficult to make out that one and the same corporation is described in the record and in the deposition. But we think the more obvious construction to the certificate is simply, that Massachusetts was the place where the corporation was doing business. The expression is simply, “ established in the state of Massachusetts.” Had the expression been, "established and doing business in the state of Massachusetts,” no one could have hesitated as to the sense in which the word “ established ” was used, and to what it referred ; and we think, as it is used, the meaning is to be taken to be the same. There is no allusion in the certificate to the power creating the corporation. The expression is, “ established in the state of Massachusetts.” It is far more reasonable to consider the words “ in business” as being dropped or omitted after the word established, than to change the words from a passive sense, in which they seem to be used, to an active sense, and one implying action on the part of the government. If that had been the sense in which the word “ established” was intended to be used, it would have been followed no doubt, with the preposition by, denoting the agent by which the corporation vras established, instead of in, which, in the connection in which it is used, seems’ to be passive and to imply simply a state of being. The fact that in the writ the corporation is described as doing business in Hartford, Conn., and in the certifi[39]*39cate to the deposition, as established, that is, in business in the state of Massachusetts, can not, prima facie, destroy their identity. We may will take judicial notice, that a corporation may have more than one place of business.
It is claimed by the defendant that the plaintiffs were bound to put in the letter of Polhemous, or upon proof of its loss, to prove its contents before they could put in Batchelder & Towsley’s reply to it, of the 20th of September, 1851. It is true that in the case of Watson v. Moore, 1 C. & Kir. 626, it was held that where one party produces the letter of the opposite party, purporting to be in reply to a previous letter from himself, he is bound to call for and put in the letter to which it was an answer, as a part of his own evidence. But should that case govern this ? We think not. Batchelder & Towsley are not parties to this suit, and the plaintiffs have no means of compelling them to produce the letter of Polhemous. Batchelder is dead, and Towsley, who took the partnership papers, is out of the state, and it cannot be required of the plaintiffs that they should prove its contents. The defendant, if that letter is important to him as explaining or qualifying the letter of Batchelder & Towsley in answer to it, has the same means to procure the production of it, as the plaintiffs have.
The admissions of B. & T. were against their title to the goods, ■and of course it is to be taken against their interest. We apprehend that by a decided weight of authority; these admissions were admissible against this defendant upon the ground of privity, which denotes successive relationship to the same rights of property. The defendant has, by operation of law, succeeded sub modo to the rights of B. & T., and upon this question he stands upon the same ground as he would if he had been their vendee.
Notwithstanding the case of Hines et al. v. Soule, 14 Vt. 99, we are disposed to affirm the decision of the county court in this particular. That case has heretofore been considerably impugned, though perhaps not directly overruled. Admissions made by the assignor of a chattel or personal contract prior to the assignment, and when the assignee must recover through the title of the assignor, and succeeds only to that title as it stood at the time of the transfer, bind the assignee. So the declarations of an indorser of negotiable paper, indorsed after it is past due, made while he [40]*40was the holder of the paper and in disparagement of his right, are evidence against the indorsee. See 1 Greenl. Ev. and cases there cited ; sec. 189, 190.
The question was considered somewhat at length upon principle and authority, in the case in 14 Vt. It is of no consequence on this question, whether the declarant is living or not, or whether he is called as a witness or not.
The declarations are not to be treated as secondary evidence or as res inter alios acta, but inter eosdem acta, and as primary evidence.
The declarations made by Batchelder after the attachment, and offered by the defendant, were properly excluded. After declarations could not be given in evidence against the defendant, much less in his favor. It is now claimed for the first time, that they were competent to impeach his former declarations. It does not appear from the exceptions that they were offered with any such view, and we are to take it that they were offered and excluded as testimony in chief. If the party claimed them as impeaching testimony, he should have offered them with that view.
We think the court were right in regard to the effect which they gave to the testimony of Wires and Edgell, and that it could only go to impeach Plolton as a witness on the stand. It is claimed that Wires acted upon the faith of the declarations of Holton, as testified to by him and Edgell, in not surrendering up the property; and, therefore, whether true or false, the plaintiffs should be bound by them if the jury found he made them. The statements of Holton went to a transaction which was then entirely past, and were in no way connected with any act which Holton was then performing for the plaintiffs, if in fact, the declarations were made as is claimed by the defendant. To render the declarations of an agent admissible against his principal, they must be made in regard to a transaction then depending, and must be a part of the res gesta. In the case now before us, the most that can be claimed is an attempt upon the part of Holton to give an account of a past transaction.
We think there was no objection to the admission of the evidence relative to the bill of sale, as it is called, or the charge of the court. The case shows that evidence was given to prove a con[41]*41tract made between these parties by parol, some short time before the goods were sent, that they should be sent to B. & T. to sell on commission, and that they were sent in pursuance of that agreement ; but this is denied by the defendant’s counsel, and the ground is assumed by him that there was a sale of them, and the invoice of the goods, or what the defendant calls a bill of sale, which was sent by the plaintiffs to B. & T. with the goods, is relied upon by him as evidence of the sale; and the ground is assumed that the bill of sale can not be explained or controlled by parol testimony. But suppose we assume, as the county court assumed on the trial of the cause, that the bill of sale does, upon its face, import a contract of sale, still we apprehend there can be no difficulty in the case. The point controverted was, whether the goods were in fact delivered under the contract which had been made for a consignment to sell on commission, or under the bill of sale; and whether, if the goods were delivered by the plaintiffs under this bill of sale, they were received and held by B. & T. in such a way as to bind them by the bill of sale, though at the time they received them they understood it was upon a contract to sell upon a commission. The question then really was, whether this bill of sale ever took effect and became the contract of the parties. The question whether a written contract has ever been consummated, may always rest in parol. This bill of sale could not be binding upon B. & T., and of course could not be a contract until adopted by them. The jury have found, under the charge of the court, and as we think a correct one, that B. & T. were never bound by the bill of sale.
In regard to the plaintiffs’ right to maintain trespass, we think the charge was right. The jury under this part of the case must have found that B. & T. had the goods to sell on commission, and that the plaintiffs were not indebted to B. & T. for commissions, and that they could only have a claim for commission by way of abatement on the prices of what were sold, and that B. & T. had not paid the plaintiffs for any of the goods sent them; and also that B. 8c T. failed and became insolvent a short time before the attachment by the defendant.
The plaintiffs had the general ownership of the goods, and B. & T. had no lien upon them for commissions; and, though they had the possession of them under the bailment with a power of [42]*42sale, yet, upon tlie failure and insolvency of B. & T., there was a a right in the plaintiffs to an immediate and an actual possession, and this general right would give a constructive possession. See Chaffee v. Sherman, 26 Vt. 237.
The case of Skiff v. Solace, 23 Vt. 279, is not analogous to this case. There the plaintiff was not the general owner of the chattels, and of course could not, by means of a special property, have a constructive possession.
Judgment affirmed.