The opinion of the court was delivered by
Redfield, J.
1. We think the charge of the court to the jury, as to what constituted an entry of an action in a justice court, was substantially in accordance with the decisions of Phelps v. Birge, 11 Vt. 161, and Peach v. Mills, 13 Vt. 501, and was so expressed, as not to mislead the jury.
2. The charge in regard to the presumption in favor of the regularity of the proceedings, and that some proof was necessary to overcome this, was correct; and we do not perceive, that there was any such proof in the case, as to change the burden of proof.
3. The alteration of the sheriff’s return, after the expiration of two hours from the time at which the writ was returnable, and in [127]*127the absence of the justice, is not made a ground of complaint by the plaintiff; and in our judgment it had no tendency to prove the main fact, that the justice had not been there before that time.
4. We do not perceive, that there was error in the refusal to charge as requested. As to the first request, the charge was a substantial compliance. The justice’s going to the office and entering the default after the two hours is very slight ground, indeed, for presuming against his having been there before, and not sufficient to change the balance of proof. As to the third request, — it is certain, that the plaintiff was not entitled to a charge to the full extent of that request, and therefore the mere refusal so to charge is not error. Some portion of the request is in express contravention of the decision in Peach v. Mills. — that is, that an order to have the case lie open was necessary; and so far as any law is embraced within its scope, the charge is a substantial compliance.
5. We do not think Mr. Lyman had any such interest in the suit, as to make his admissions evidence upon that ground alone. To effect that, he should be the real party, like a cestui que trust, or an under sheriff.
6. We do not think Mr. Lyman’s declarations to Underwood, that the justice had not been there, are to be received as evidence on the ground that he might have acted on them and been thereby misled. This is not alleged, as the ground of setting aside the judgment; it is therefore immaterial to prove it, — as the party can derive no benefit by proving more than his case on paper. If that had been alleged, as a ground of complaint, the proof might very properly have been admissible, and without regard to its truth, or falsity, it tending to show a fraud in obtaining the judgment, which would become the fraud of the party by adoption, if he claimed to enforce the judgment.
• 7. We cannot see how the other declarations of Lyman, as to whether the justice had been at the office that morning, or he had seen him that morning, were properly admissible, upon principle. They may come within the analogy of some of the cases, — very near, perhaps, to that of Burlington v. Calais, 1 Vt. 385 ; but in principle it seems to us they are not admissible.
They were not an admission by an attorney, for the purpose of the trial, and to obviate the necessity of proof. This is a matter [128]*128coming within the authority of an attorney, and in these matters his admission will bind the principal, or party. Many of the cases referred to in the argument are of this character, and are clearly inapplicable to this case.
It does not seem to us, that they can be regarded as made to give character to any act of Lyman, or that they can be regarded as in any sense a part of the res gesta, — certainly not in such a sense, as to make them admissible upon this issue. They were mere declarations as to past events, affecting, to be sure, the interests of the client, but not qualifying any act of Lyman, either past, present, or future.
The usual test applied in such cases will show clearly, that they are not admissible. Is the ultimate inquiry, whether the attorney made the admissions ? does this end the matter ? or are they but media of proof of some other ultimate truth ? and does their force depend mainly upon the veracity and means of knowledge of Mr. Lyman? If so, they are not evidence. And that this is the case is very obvious. It is not pretended, that, if ten witnesses should swear, that Mr. Lyman said, or it could be shown, that Mr. Lyman stated in writing, that no justice had been there that day, upon this issue, it might not still be shown, that the fact was otherwise, and this, too, by Lyman himself.
But this could not be done in the case of an admission made by the attorney, as a matter of proof to be used in a trial. If the admission were made, no matter how false, the party is bound by it. So, too, of any declaration, which the other party had relied upon. But these declarations Gould not be given in evidence to show the fact in any future trial, when the written admission had become functus officio.
This whole subject is somewhat illustrated by the case of a servant sent out to sell a horse. He may affirm, that the horse is unsound, and has been so for a long time, and his master bought him for an unsound horse; and if his master be sued for fraud, this may be shown, to defeat the action. But if his master be sued by the vendee, on a false warranty, none of these declarations of the servant can be shown against the master, to establish the fact of the horse having been bought as unsound, nor, if he sell the same horse the same day to another, without making these disclosures, can these [129]*129facts be shown by the declarations of the servant, in regard to another sale.
The agent not only cannot make admissions to bind his principal, after the transaction is closed, but the same is true of its several stages. The moment any portion of the agency is closed, it is beyond the power of the agent to affect its validity by mere admissions. If a servant sell, on account of his principal, it is not competent for him, while he is collecting the note given for the price, to implicate his principal in a fraud, by admitting that he, or his master, obtained the note by fraud. There is no end to the cases or illustrations of this principle; the very case in hand is as good as any other.
As to the cases cited: — Bauerman v. Radenius, 7 T. R. 659, merely establishes the point, that the admissions of the party of record are evidence, notwithstanding he is a mere trustee. Wetherell v. Bird, 32 E. C. L. 415, is the admission of the attorney, for the purpose of the trial, made at a former term, and held binding. Standage v. Creighton, 24 E. C. L. 383, merely puts the client on the basis of the attorney, and then admits his offers for a settlement, and very properly refuses to act upon them. It is a nisi prius decision, of about as much weight as the one in this case, — not more, certainly. Elton v. Larkins, 24 E. C. L. 273, merely shows, that admissions at a former trial may be used, until the case is ended. Bayley v. Bryant, 24 Pick. 198, is merely giving in evidence the sayings of the real party in interest, though not the party of record. The case of the Am. Fur Co. v. United States, 2 Pet.
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The opinion of the court was delivered by
Redfield, J.
1. We think the charge of the court to the jury, as to what constituted an entry of an action in a justice court, was substantially in accordance with the decisions of Phelps v. Birge, 11 Vt. 161, and Peach v. Mills, 13 Vt. 501, and was so expressed, as not to mislead the jury.
2. The charge in regard to the presumption in favor of the regularity of the proceedings, and that some proof was necessary to overcome this, was correct; and we do not perceive, that there was any such proof in the case, as to change the burden of proof.
3. The alteration of the sheriff’s return, after the expiration of two hours from the time at which the writ was returnable, and in [127]*127the absence of the justice, is not made a ground of complaint by the plaintiff; and in our judgment it had no tendency to prove the main fact, that the justice had not been there before that time.
4. We do not perceive, that there was error in the refusal to charge as requested. As to the first request, the charge was a substantial compliance. The justice’s going to the office and entering the default after the two hours is very slight ground, indeed, for presuming against his having been there before, and not sufficient to change the balance of proof. As to the third request, — it is certain, that the plaintiff was not entitled to a charge to the full extent of that request, and therefore the mere refusal so to charge is not error. Some portion of the request is in express contravention of the decision in Peach v. Mills. — that is, that an order to have the case lie open was necessary; and so far as any law is embraced within its scope, the charge is a substantial compliance.
5. We do not think Mr. Lyman had any such interest in the suit, as to make his admissions evidence upon that ground alone. To effect that, he should be the real party, like a cestui que trust, or an under sheriff.
6. We do not think Mr. Lyman’s declarations to Underwood, that the justice had not been there, are to be received as evidence on the ground that he might have acted on them and been thereby misled. This is not alleged, as the ground of setting aside the judgment; it is therefore immaterial to prove it, — as the party can derive no benefit by proving more than his case on paper. If that had been alleged, as a ground of complaint, the proof might very properly have been admissible, and without regard to its truth, or falsity, it tending to show a fraud in obtaining the judgment, which would become the fraud of the party by adoption, if he claimed to enforce the judgment.
• 7. We cannot see how the other declarations of Lyman, as to whether the justice had been at the office that morning, or he had seen him that morning, were properly admissible, upon principle. They may come within the analogy of some of the cases, — very near, perhaps, to that of Burlington v. Calais, 1 Vt. 385 ; but in principle it seems to us they are not admissible.
They were not an admission by an attorney, for the purpose of the trial, and to obviate the necessity of proof. This is a matter [128]*128coming within the authority of an attorney, and in these matters his admission will bind the principal, or party. Many of the cases referred to in the argument are of this character, and are clearly inapplicable to this case.
It does not seem to us, that they can be regarded as made to give character to any act of Lyman, or that they can be regarded as in any sense a part of the res gesta, — certainly not in such a sense, as to make them admissible upon this issue. They were mere declarations as to past events, affecting, to be sure, the interests of the client, but not qualifying any act of Lyman, either past, present, or future.
The usual test applied in such cases will show clearly, that they are not admissible. Is the ultimate inquiry, whether the attorney made the admissions ? does this end the matter ? or are they but media of proof of some other ultimate truth ? and does their force depend mainly upon the veracity and means of knowledge of Mr. Lyman? If so, they are not evidence. And that this is the case is very obvious. It is not pretended, that, if ten witnesses should swear, that Mr. Lyman said, or it could be shown, that Mr. Lyman stated in writing, that no justice had been there that day, upon this issue, it might not still be shown, that the fact was otherwise, and this, too, by Lyman himself.
But this could not be done in the case of an admission made by the attorney, as a matter of proof to be used in a trial. If the admission were made, no matter how false, the party is bound by it. So, too, of any declaration, which the other party had relied upon. But these declarations Gould not be given in evidence to show the fact in any future trial, when the written admission had become functus officio.
This whole subject is somewhat illustrated by the case of a servant sent out to sell a horse. He may affirm, that the horse is unsound, and has been so for a long time, and his master bought him for an unsound horse; and if his master be sued for fraud, this may be shown, to defeat the action. But if his master be sued by the vendee, on a false warranty, none of these declarations of the servant can be shown against the master, to establish the fact of the horse having been bought as unsound, nor, if he sell the same horse the same day to another, without making these disclosures, can these [129]*129facts be shown by the declarations of the servant, in regard to another sale.
The agent not only cannot make admissions to bind his principal, after the transaction is closed, but the same is true of its several stages. The moment any portion of the agency is closed, it is beyond the power of the agent to affect its validity by mere admissions. If a servant sell, on account of his principal, it is not competent for him, while he is collecting the note given for the price, to implicate his principal in a fraud, by admitting that he, or his master, obtained the note by fraud. There is no end to the cases or illustrations of this principle; the very case in hand is as good as any other.
As to the cases cited: — Bauerman v. Radenius, 7 T. R. 659, merely establishes the point, that the admissions of the party of record are evidence, notwithstanding he is a mere trustee. Wetherell v. Bird, 32 E. C. L. 415, is the admission of the attorney, for the purpose of the trial, made at a former term, and held binding. Standage v. Creighton, 24 E. C. L. 383, merely puts the client on the basis of the attorney, and then admits his offers for a settlement, and very properly refuses to act upon them. It is a nisi prius decision, of about as much weight as the one in this case, — not more, certainly. Elton v. Larkins, 24 E. C. L. 273, merely shows, that admissions at a former trial may be used, until the case is ended. Bayley v. Bryant, 24 Pick. 198, is merely giving in evidence the sayings of the real party in interest, though not the party of record. The case of the Am. Fur Co. v. United States, 2 Pet. 358, only decides the general point, or question, that the acts of the agent, within the scope of his authority, and his declarations in relation to the acts he is then doing, are competent evidence against his principal. This was virtually the case of a conspiracy to violate the custom laws of the United States. Alton v. Gilmanton, 2 N. H. 520, is the case of an admission for the purpose of the suit, like the English cases. Holt v. Squire, 21 E. C. L. 439, is a nisi prius case of two lines, where the attorney, in giving notice to produce papers on the trial of an action against his client, as acceptor, describes the bill, as “ accepted by defendant,” and the court held, that this was prima facie evidence of the acceptance. I should, for one, doubt the soundness of the case. It seems to me giving in evidence the mere loose conversations of the attorney; whereas nothing but solemn ad[130]*130missions of the attorney, made for the purpose of the trial, are competent. Curtis v. Ingham, 2 Vt. 287, is put expressly upon the ground, that the declarations of the wife were a part of the transaction. Truslove v. Burton, 17 E. C. L. 121, is an admission for the trial. The case of Burlington v. Calais, 1 Vt. 385, is put upon the ground, that it was a part of the business of the agent to agree upon the evidence to be produced, and that this was an admission made for the purpose of the trial. It seems to me, the case is rather an overstrained one, — as much so as would be the present, to admit the testimony objected to. Judgment affirmed.