| Ala. | Dec 15, 1876
The Circuit Court did not err iu excluding-the evidence offered of declarations, or offer of settlement made by Jacob Marx, the clerk of appellee, Isaac Marx. The rule is, that “to render the admissions or declarations of an agent admissible as evidence against, or obligatory upon the principal, they must be explanatory of some cotemporaneous act within the scope of his authority, or made while in the execution of the agency, forming part of the res gestad.” — 1 Brick. Dig. 63, § 160.
In the present record there is no evidence that the alleged declaration of Jacob Marx accompanied, or tended to explain, any act of agency he was performing. In fact, the record does not inform us that he was doing any act, or that he had authority to do any act in connection with the controversy.
There may be another ground on which the evidence was not admissible, but we need not mention it.
The action in this case was trespass de bonis asportavit. The plaintiff asked the court to charge the jury “ that if they believed from the evidence that defendant, Marx, was in possession of the mule, and had a lien on the mule for a debt due to him from the plaintiff, and before the suit was brought the defendant tendered payment of the debt; then thereby the plaintiff acquired a possessory right to the mule, which in connection with an unlawful or irregular taking by the defendant, will support trespass, although there was no wrongful intent on the part of the defendant in the taking.” It was, probably, a sufficient reason for refusing this charge, that it assumed as a fact that there had been “ an unlawful or irregular taking (of the mule) by the defendant.” The testimony, if it tended to show the taking was unlawful or irregular, was not free from conflict, and the court could not assume it as a fact proved. But there is another ground which justifies the refusal: “ If the original taking be not a trespass, as against the plaintiff, the subsequent conversion of the property will not make the defendant liable to this action.”—Davis v. Young, 20 Ala. 155; Gardner v. Campbell, 15 Johns. 401" date_filed="1818-10-15" court="N.Y. Sup. Ct." case_name="Gardner v. Campbell">15 Johns. 401; Rowley v. Rice, 11 Metc. Mass. 337.
Judgment of Circuit Court affirmed.