Thompson, Ch. J.,
delivered the Opinion of thé court; The right of the plaintiff to retain the verdict, found in his favour, Will depend principally upon the question, whether there was ‘competent and sufficient evidence of his having become security ■for the defendant, arid that he had páid the money alleged to have been paid on that account ?
It is. Unnecessary tb examine miriutely thé proof that was before thé court at the time application was made for a nonsuit; for, admitting there Was ndt evidence enough,’ at that time, to warrant a recovery, yet, if the deficiency was afterwards supplied, and there was proof sufficient to support the verdict when found, the present motion cannot prevail;
With respect to the instrument, by which it is alleged that the plaintiff became security for the defendant, the proof is abundantly sufficient to show that the original could not bé produced Upon the trial. According tb thé laws of the Spanish province. Where this instrument was executed, the original, or the one actually signed by the parties, remains with the notary before whom it was executed. Copies, certified- and signed by' the notary, are delivered to the parties ; .and such copies, thus authenticated, áre receivéd in evidence in all the Spanish tribunals*
It is unnecessary definitively to say. whether the lex loci Ought So far tb prevail, as to require these notarial copies to be admitted in evidence here, in the samé manner as in the Spanish tribunals* I am inclined to think, however, they ought not to be received as sufficient, per se; but I cannot think they áre to be entirely disregarded, and treated as mere nullities; They ought to í?é received as forming a part of the inferior evidence of the execution of the instrument, when the original cannot be prodbeéd and proved. It appears" to bé a part of the official duty of the notary to give copies; he is- specially intrusted with that power; and, in giving such copies, he acts under his oath of office. The instrument is executed- before him in his official capacity, and an official certified copy, necessarily implies that he saw the instrument executed., In what respect does this ’differ from an examination upon a commission? He Cat! only sWear he saw the instrument executed, and that the copy furnished by him is under oath. Besides, we ought tO.be cautious *74In declaring that we will receive' nothing short of the examina»1 tj0n 0f plc notary, under a commission, as, there is no mode; of enforcing such examination ; nor is a sworn copy, proved by a person who has compared it with the original, any higher or bet-' ter evidence than that furnished by the, notary, which is a .copy tinder his oath of office.. But the evidence furnished in the case -before us is mote satisfactory than either, arising out of the repeated, uniform, and uncontradicted confessions of the defendant, contained .in,- his.letters, and to witnesses,' whosetestimony was before the jury. ' Paccanius, who, in behalf of the plaintiff, applied to the defendant for payment, swears that he showed him the documents, given in evidence, which purported tQ.be notarial copies of the instrument, whereby the plaintiff became-security for the defendant; and the cancehnent of the contract, upon the payment of up wards of 20,000 dollars by the plaintiff, as security for the defendant, in conformity with a decree of the-Spanish tribunal; that the defendant examined the papers, and, without any hesitationrecognised them as genuine and authentic. In addition to this, he acknowledged to this witness,, that the plaintiff had entered into the obligation on- th'e.tobacco- contract, as security for him. This witness also exhibited; to him an áccount, containing the charge of 20,518 dollafs' and 3Í cents, paid to the' royal administration of tobacco at Caraccas, as security: for the defendant, and referring to the instrument executed on that occasion. The, defendant did not , dispute the justice of the,plaintiff’s claim, nor-questfon the accuracy of any of the items, contained in the account,-but insisted only that he acted as agent,.' and in behalf of Baker ; and that the plaintiff ought to look to-him for payment* To Serra, another Witness, the defendant acknowledged that the plaintiff Was bound as security for him-. This witness also confirms the testimony of Paccanius, ivith respect to the defendant not disputing any of the items contained i¿ the account presented to him. These acknowledgments furnish. evidence ..of an express admission that the- copies offered in evidence were genuine and authentic, copies of the original,. and'serve, to identify the instruments Beyond all dispute. If any thing more eould possibly be wanting, it- is furnished by the defendant’s-letters., In the one of the 7th of February, 1806, he' apprizes, the plaintiff that he should send a vessel for the rest of . the tobacco, and adds; .but,, at all events, I shall take care to indemnify you for your - suretyship to the royal administration of* *75tobacco. Again, in his letter of the 6 th of January, 1808, he admits he entered into the tobacco contract, and tells the plaintiff to be under no apprehensions that-he shall in any manner suffer in the affair. And, as late as 23d'of June, 18.1-0, he writes, that he had been made the victim in the affair of the tobacco, and wanted to be informed whether the plaintiff had to pay any thing, and how much; promising either to go himself, or send some person, for the purpose of settling the unfortunate affair. If the confessions of the defendant, either by parol or in writing, are at all to be received in evidence, they are amply sufficient, in this case, to show- a due execution of the instrument whereby the plaintiff became his surety. This instrument was not under seal; so that no objection on that account can be made. I see no objection, nor, indeed, was any made'on the trial, to the admissibility of such evidence. In the case of Hall v. Phelps, (2 Johns. Rep. 452.,) it is said, that the confession of a party that he gave a note', or any instrument precisely identified, is as high proof as that derived from a subscribing witnessi
That- the plaintiff has paid upwards of 20,000 dollars on account of the breach of the defendant’s contract with the Spanish government, is established, not only by the admission of the defendant, but by the positive evidence of Paccanius, who swears that he did, at the plaintiff’s request, by his orders, and in his behalf, pay the money into the royal treasury, in pursuance of the decree. It was unnecessary to'prove the decree, as a breach of the contract which the defendant made with the Spanish government, is fully shown by the admissions of the defendant. In his letter of February, 1806, he speaks of sending a vessel for the rest of the tobacco, if circumstances would permit; and he expressly admitted to Paccanius that he had not sent a vessel to take away the tobacco, being apprehensive she. would not be admitted on account of Miranda?s expedition. •
If-the contract was broken, it was not necessary for the plain».¡ tiff to stand a suit. If the liability of the surety, and a payment of the money by him, be shown, it will be sufficient to warrant a recovery against his principal.
In answer to all this, it has been Urged that the plaintiff -was •the agent of Serra, and, therefore, has no right to recover on his own account, even admitting the defendant’s liability to Serra; and, also, that the defendant was acting as the agent of other persons, and cannot be made personally, responsible, but *76recourse must he had to his principals. I cannot discover from the evidence in the case, any, thing to warrant, Or even to¡ give colour, to the conclusion, that, with respect to the tobacco, contract, the plaintiff was acting as the agent of Serra, The allegation of the defendant, to that effecl, in his letter of January, M08, is top vague to deserve any consideration;: it is at variance with the contract itself, and with the general tenor of the defendant’s conduct and Confessions, and might very well have, been an afterthought in thé defendant, to endeavour tp shift the loss from his own shoulders. Nothing is to be collected from the contract itself, to show that the plaintiff,acted in behalf of Serra; nor is there any eyidenee that he represented himself to the defendant as such agent, when hp entered into the security, Jf such had been the fact, there can bp no dopht that it woulc| have appeared upon the fees of the contract, This the parties well understood, for they made the contract by their agents, as •appears by the instrument, and the authority of the agents, as set out. It is not to. be credited that, if the plaintiff had authority from Sersq to become surety for the defendant, he would not have appeared in that character in the transaction. ' There is no doubt that the plaintiff was the agent of Serra, during his absence in .Spain, and there is considerable testimony tending to show that, in the sales of the cargoes of. the. Catharine and Stranger, be'acted in behalf of Serra. But these were ’mercantile transactions, altogether distinct from becoming security for the performance of a contract in which Serra,, from any thing that ap? pears, had no interest or concern. If the defendant has .procured the plaintiff to become security for him,-in his awn name, And he has been compelled to pay the money,, it very Illy be- . comes the defendant, now, to say he is responsible to Serrq, and mot to the plaintiff* Before the plaintiff is turned arpund to. Serra for indemnity, it ought very clearly to appear that hp has •a, remedy against him. - If the plaintiff ever made the, aciaipwdedgment, stated by JfPConehey, as to his being the agent of Serra, it must have related to a mercantile agency, and not to an authority to become security on the tobacco contract. At all (events, this was matter for the consideration of the jury. Ferro,, who appears, from his examination, to have been well acquainted with the circumstances, in relatiou to the tobacco contract, and the payment of the money by the plaintiff, says he has no rea$pa to imagine that the plaintiff, when he becamesurety far Jhp *77.defendant, was acting in behalf of Serrcc, or that the money which the plaintiff was compelled to pay, as such surety, was paid out of the funds of Serra, or that the plaintiff was in any manner indemnified by Serra; nor is the evidence sufficient to prove that the defendant acted as the agent of any person, in making the tobacco contract. The contract, itself, does not recognise him in that character; nor does the evidence show that, at the time of making the contract, he represented himself as such agent. No power was shown, giving him authority to make any such contract. It is hardly credible that the plaintiff would have become security upon the credit of others, without seeing some authority in the agent to pledge their responsibility; The defendant has not, even now, furnished any evidence that he had authority to make such a contract for Baker, or any other person. He went out as supercargo of the Catharine, but that did not vest him with’authority to make the contract for the tobacco. It was totally unconnected with his duties as supercargo. Indeed, it is very uncertain now, from the evidence in the case, who were his principals; whether Baker alone, or Baker 8r English, or Baker 8? Barker; and the plaintiff would be entirely at a loss to determine who are his principals.
The correctness of the legal position stated to the jury, and by which they were to test the evidence, has not been questioned, 'that if a party would excuse himself from responsibility, because he acted in the capacity of agent,, he ought to show that he communicated to the other party his situation as agent, and that he acted in that capacity, so as to give a remedy over against the person whom he represented as his principal. The testimony in this case furnishes no such evidence. The defendant, therefore, cannot excuse himself on this ground. It is unnecessary to travel through the various items of the accounts; for, if the defendant is at all answerable for the money .paid on the tobacco contract, he is, at least, liable to the amount of the verdict found by the jury. And that he is so answerable is, I think, very clear. The motion for a new trial must, accordingly, ]ae denied.
Jfotion denied.