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tions of an agent are admissible as evidence against his principal,
it may be proper, first, to state the grounds upon which they have
been deemed to be so. The statements of an agent, generally,
though made of the business of his principal, are not to be taken
as equivalent to the admissions of the principal, for then the latter
would be bound by them, whether true or false, which would
render the situation of every principal truly perilous. Every man
has a right to make such representations of what he has done as
he pleases, and to bind himself to abide by them, whether true or
otherwise; and they of course maybe given in evidence against
him afterwards, when relevant to the issue trying; not, however,
because the facts therein stated are true, but because he has the
right to pledge himself in the same manner as if they were true;
and if true, justice naturally requires that he should be bound by
them, or if not, it is no more than the infliction of a just penalty
for his disregard of truth. But it would not be reasonable to hold
him responsible upon the same principle, for the declarations of his
agent ; nor upon any principle, except that of truth and the pro-
tection of those against loss or injury, that might otherwise arise
from their having confided in the representations of the agent,
made by him at the time of entering into the agreement, or of
transacting the business, under the authority of his principal. Ac-
cording to Mr Phillips, in his Treatise on Evidence, vol. i. page 77,
it is only the statements or representations of the agent, made in
effecting an agreement or doing an act toilhin the scope of his
authority, that are evidence against his principal, and considered
vi. 3 M

490 SUPREME COURT [Pittsburgh

[Hannay v. Stewart.]

equivalent to his own acknowledgments; because, as he says, they
may be explanatory of the agreement, or determine the quality of
the act, which they accompany, and, therefore, must be binding on
the principal, as the act or agreement itself. For instance, what an
agent says at the time of a sale, which he is employed to make, is
evidence as part of the transaction of selling. But the principal is
not bound by a representation of the agent at another time. This
seems to be a fair exposition of the rule, as laid down by Chief
Justice Gibbs, in Langhorn v. Allnutt, 4 Taunt. 511, where he
says, " When it is proved that A is agent of B, whatever A does,
or says, or writes, in making of a contract as agent of B, is ad-
missible in evidence, because it is part of the contract which he
makes for B, and which, therefore, binds him ; but it is not admis-
sible as the agent's account of what passes." To which Mr
Phillips, after reciting it, page 78, adds, " such declarations are ad-
mitted in evidence, not for the purpose of establishing the truth of
the fact stated, but as representations, by which the principal is as
much bound as if he made them himself, and which are equally
binding, whether the fact stated, be true or false." Now, in the
present case, it is manifest the representations of Parker to Arthur
were only his account of what he was doing, without the witness's
seeing him do any thing at all, and of what had passed or been
done by him the day before, and, therefore, not admissible.

But supposing the facts stated by Parker to be true; were they
relevant to the issue; for unless they were, they ought to have
been rejected for this reason also. The plaintiff below, could only
entitle himself to recover in this action from the defendant, by
showing that he had either endorsed the note, which he afterwards
paid as endorser, upon the credit of the defendant below, or that
the money raised upon his endorsement, was applied to the use of
the defendant. Now the note on its face appearing to have been
drawn by Parker on his own account, his representations to Ar-
thur, admitting them to be true, did not in the least tend to prove
either of those facts, upon which the plaintiffs right to recover
turned, and were, therefore, inadmissible.

For this last reason also, we think, that the court erred in admit-
ting that part of Eliel T. Foot's evidence, which was objected to,
and forms the ground of the third error. The part objected to, is
that, in which the witness states, that " at the request of Parker,
the maker of the note, it was discounted at the Chautauque Bank,
to enable him to run lumber to market, and that he pledged his
honour, that 150 or 170 dollars should be used in running his (that
is, Parker's own) lumber down the river, and the balance in start-
ing or preparing lumber to run to market." Suppose here, that
Parker intended to do as he stated to the witness, it would seem,
that it was his own lumber, and not the defendant's that he de-
signed to send to market by means of the money: and if so, could
make nothing in favour of the claim of the plaintiff below, and

Sept. 1837.] OF PENNSYLVANIA. 491

[Hannay v. Stewart.]

therefore, the defendant might have waived his objection to it.
But it would seem, as if this evidence was regarded by the counsel
of the plaintiff below, and by the court too, as tending to support
the claim of the plaintiff: then take it to be what the plaintiffs
counsel seemed to think it was, that Mr Foot had testified, that
Parker told him, at the time of getting the note discounted, that he
wanted the money for the purpose of sending the defendant's lum-
ber to market, and pledged himself to use it accordingly, still it
would not have been evidence against the defendant below, be-
cause it could not have been considered as going to prove that the
plaintiff, who was not present, and heard nothing of it, had either
endorsed the note on the credit of the defendant, or that the money
so obtained, was even intended, much less actually applied to the
use of the defendant in any way whatever. Besides, it is too plain
to be mistaken, that the statement of Parker to Mr Foot, was not
made with a view to pledge the credit of the defendant, whose
name was not mentioned, nor he himself alluded to at the time,
but done merely to make Mr Foot believe, that the money was
wanted for the purpose of conveying lumber to market, supposing
that the bank was disposed to give this object a preference in grant-
ing accommodations.

The fourth error is not sustained. According to the rule which
has been established and recognized by this court in several cases,
the notes taken by Mr Pearson of A. Holley's testimony given on
the trial of a prior action, brought for the same cause between the
parties here, were rightly admitted to be read in evidence to the

Among the remaining errors assigned, consisting of exceptions
to the opinion of the court in answering points submitted by the
counsel on both sides, and to matters of instruction contained in
the charge to the jury, it is only necessary to notice one or two
points, in which the court appear to have erred.

The court submitted it as a question of fact to the jury, to be
decided by them, whether the plaintiff below had not endorsed the
note upon the credit of the defendant; and if so, they ought to find
for the plaintiff. In this, we are of opinion there was error; be-
cause no evidence was given to the jury on the trial, going to
show, that the plaintiff endorsed the note upon the credit of the
defendant. On the contrary, the evidence t.ll went to prove that
he must have endorsed it on the credit of Parker, and at his instance :
for, besides the fact of the note being drawn by Parker, as would
seem from the face of it, for his own benefit, and on his account, it
appeared from the evidence, that the plaintiff had made contracts,
and had had dealings with Parker to a considerable amount on his
own individual account; and upon no occasion, did it appear, that
he had transacted business with him as the agent of the defendant.
It was also shown, that both the plaintiff and Parker resided at
the time, in Warren county of this state; and that the defendant

492 SUPREME COURT [Pittsburgh

[Hannay v. Stewart]

resided in the state of New York, at a distance from the plaintiff
and Parker; and had not been in the county of Warren, or at the
mills, from the time the letter of attorney was given, until after
Parker left the country; in short, it thus appeared, that he was
rather a stranger in that section of the country, and out of the view
of the parties concerned in raising the money. It is also, equally
clear, that no evidence was given, from which the jury could fairly
infer that the money obtained upon the endorsement of the plain-
tiff was applied in any way to the use, or for the benefit of the
defendant. And to this effect, the court ought to have instructed
the jury; and further, that in the absence of evidence, as it ap-
peared, tending to prove that the plaintiff had either endorsed the
note upon the credit of the defendant, or that the money obtained
thereon, had been appropriated to the use of the latter, their ver-
dict ought to be in his favour.

Judgment reversed, and a venire de novo awarded.

Thompson against O'Hanlen.

The issuing of a warrant by a justice of the peace, by authority of the act authorizing
the sale of strays, is a judicial act, the regularity or irregularity of which cannot be
inquired into collaterally. If a sale be made upon the warrant, the purchaser will have
a good title to the property sold, whether the proceeding be regular or not.

ERROR to the common pleas of Allegheny county.

This was an action of replevin for a cow by Michael O'Hanlen
against Samuel Thompson. The facts appeared to be, that the cow
had been straying upon and about the premises of the defendant
for some weeks, and when she was actually taken up as a stray,
she was upon the public road, which passes through the defendant's
land. She was entered upon the township books, and the defend-
ant afterwards obtained a warrant from a justice, directed to a*con-
stable to sell the cow under the act of the 13th of April 1807; and
she was sold; and the defendant having become the purchaser, this
replevin was brought.

The court below was of opinion, that the proceeding by which
the cow was sold was in fruudem legis, in consequence of her
having been taken upon the public road, and not upon the defend-
ant's premises, and therefore the proceedings and sale vested no
title in the purchaser, and the plaintiff was entitled to recover his

Lowrie, for plaintiff in error, cited 5 Term Rep. 255; 2 Show.
232; 7 Cranch 423; 6 Mass. 277; 17 Johns. Rep. 145; 13 Johns.

Sept. 1837.] OF PENNSYLVANIA. 493

[Thompson v. O'Hanlen.]

Rep. 101; 6 Binn. 124; 1 Greenl. 374; 3 Penns. Rep. 98; 1 Sinn.

M'Candless, for defendant in error, cited 4 Pick. 249; Hard.
482; 1 Few^r. 220.

The opinion of the Court was delivered by

SERGEANT, J. In order to sustain the claim of the plaintiff be-
low, it must appear that the proceedings before the magistrate were
a dead letter, and the sale thereon an absolute nullity; and this,
according to the authorities referred to in Tarbox v. Hays, ante 398,
would be the case, if the magistrate had no jurisdiction over the
subject matter. But if he had jurisdiction in the case, and was
acting judicially, he may have proceeded irregularly or decided
erroneously on the merits; yet even were his proceedings set aside,
the purchaser's title remains unaffected. It is alleged that he mis-
took in deciding that a stray taken up on the public road, after hav-
ing, on prior days, broken into the iriclosure, comes within the
meaning of the law. If so, it was a mistake in the exercise of a
jurisdiction committed to him by the acts of assembly, not the as-
sumption of a jurisdiction not given by law. Then did he act ju-
dicially in granting the warrant? I conceive that he did, and that
it was for the purpose of having his investigation that the warrant
is required to be issued by a judicial magistrate, and that the sale
is not authorized to be made by the party. As such judicial officer,
to whom the jurisdiction is entrusted, he is, before issuing his war-
rant, bound to take evidence, by the examination of the complain-
ant on oath, or by other testimony, and to satisfy himself whether
or not the case falls within the meaning of the act. He is not
blindly to issue a warrant on the mere request of the party, and
thus, perhaps, unfoundedly sacrifice the property of another. The
sale, then, being made under a warrant issued upon a judicial pro-
ceeding, in a matter over which the magistrate had jurisdiction,
even if his decision were voidable, and were actually reversed or
set aside, the title would pass to the purchaser. There is no alle-
gation of want of notice, which the act directs to be by advertise-
ment, in case the owner is unknown. For defect of such advertise-
ment the purchaser's title may be divested by the express provisions
of the act of assembly; but it embraces no other case.

Judgment reversed, and a venire facias de novo awarded.

494 SUPREME COURT [Pittsburgh

Magill against Tomer.

After a judgment by a justice of the peace, the defendant offered to confess a judg-
ment ibr a less sum, which the plaintiff refused to accept, and the defendant appealed;
the plaintiff recovered a verdict for a less sum than the offer of the defendant beibre
the justice. Held., that the defendant was entitled to recover his costs eince the appeal,
and that the court might set off the amount against the amount of the verdict.

ERROR to the common pleas of Allegheny county.

Robert Magill v. Jacob Tomer. The plaintiff brought this suit
before a justice, who rendered a judgment for him on the 10th of
May 1836, for 66 dollars. On the 21st of May the defendant
offered to confess a judgment for 55 dollars, and his offer was en-
tered upon the record of the justice; and of this the defendant gave
the plaintiff notice. On the 28th of May the defendant appealed.
The cause was afterwards tried in court, and a verdict rendered for
the plaintiff for 50 dollars. On a rule to show cause, the court
(Dallas, president) ordered the defendant's bill of costs, since the
appeal, to be set off against the amount of the verdict. This was
assigned for error.

M' Candles-?, for plaintiff in error.
Stewart and Livingston, contra.

PER CURIAM. The statute declares it to be the duty of the justice
to enter the offer to confess judgment, on his docket; and he is,
consequently, the person to receive it. Indeed, it could not be other-
wise where, as in this case, the attendance of the plaintiff had been
rendered unnecessary by the recovery of a previous judgment, and
where he could not be expected to be present at the time of the
offer. In this respect, then, the letter of the law was complied with;
and as to notice, it is silent. It is unnecessary to determine whether
service of notice be the business of the magistrate or of the party,
it being sufficient that the plaintiff actually had it. As he did not
recover, by his appeal, more than he might have had without, he
incurred the costs of it; and these were properly deducted from the

Judgment affirmed.

Sept. 1837.] OF PENNSYLVANIA. 495

Lynch against The Commonwealth.

In the absence of any direction from the plaintiff, a sheriff pursues the exigency of
his writ of fieri facias by selling goods levied on, at a public sale; and if he be guilty
of no fraud or neglect in relation to such sale, is not answerable to the plaintiff, al-
though the goods may have brought an inadequate price.

ERROR to the common pleas of Fai/etfe county.

This was an action of debt on the official recognizance of D. P.
Lynch, former sheriff of Fayette county.

Springer's executors obtained a judgment against N. Mitchell,
on which an aliax fieri facias was issued, returnable to January
term 1823, No. 222, by virtue of which the sheriff, D. P. Lynch,
levied on sundry articles of personal property of the defendant,
subject to a prior fieri facia?, No. 153 of the same term, in favour
of William Barton. William Barton issued a venditioni exponas
to June term 1823, in obedience to which the sheriff sold the pro-
perty levied on.

Springer's executors alleged in this suit, that the property was
sacrificed, and " proposed to prove the value of one negro woman
slave for life, one full set of screw cutting machinery, and three
full sets of smith's tools, and one cow, levied on as the property of
N. Mitchell, at the suit of Levi Springer, as per No. 222 of Janu-
ary term 1823, already shown to the court and jury in this case.
To this testimony the defendants objected, because it appears, that
the property was sold on venditinni exponas, issued on the fieri
facia*, to which this levy of Springer's was subject." The court
overruled the objection, and the defendants excepted.

Much testimony was then given as to the value of the property,
and the manner of the sale: by which it appeared, that the sale
was conducted in the usual manner in the presence of many citi-
zens, and of the attorney of Barton, the plaintiff in the execution, on
which they were sold: but that some of the articles were knocked
down very low.

The defendant then requested the court to instruct the jury,
" that when the sale is fair, and in the presence of the attorney of the
plaintiff in the execution under which the sale is made, no stranger
to the execution, whether a judgment creditor or not, can have
any claim against the sheriff and his sureties by reason of any
inadequacy of price."

The court charged the jury as follows:

" Generally speaking, mere inadequacy of price will not render
the sheriff liable if he make a sale. There may, however, be so
great a disproportion between the sum bidden for an article, and its

496 SUPREME COURT [Pittsburgh

[Lynch v. The Commonwealth.]

real value, that he ought not to strike it down, and if he does so,
he ought to be liable, either to the defendant in the execution, or
to any other who may be interested in the property. This may be
too, even when the plaintiff is present and directing the sale. The
sheriff is in some respects the agent of the plaintiff: but he is also
the officer of the law, and he cannot be required or allowed to
sacrifice the property of the debtor; as for instance, by selling an
article worth 100 dollars, for 1 dollar."

The jury found a verdict for the plaintiffs, upon which judgment
was entered.

Errors assigned.

1st. The court erred in admitting the evidence contained in the
bill of exceptions.

2d. The court erred in the instruction given to the jury in an-
swer to defendant's request, in saying that the sheriff in making a
sale, under a venditioni, which was the case before the court, had
a discretion to sell or not, even when the plaintiff was present and
directing him to sell; that if he sold for a very inadequate price, he
rendered himself liable to the defendant, or to any one who had
an interest in the property, and that the sheriff could neither be
required, nor allowed to sacrifice the defendant's property.

Swing, for plaintiff in error, cited Cowp. 406; Ld. Raym. 1074;
16 East 276; 1 Bos. & Put. 259; 1 Chit. Rep. 643, note; 3 Camp.
523; 5 Johns. 346.

Howel, for defendant in error, cited 1 Penns. Prac. 323; 1 JJos.
$ Put. 359; Wats. Sheriff 188; 11 Serg. $ Rawle 304.

The opinion of the Court was delivered by

SERGEANT, J. The English practice in relation to sales by the
sheriff of goods levied on by fieri/arias, differs from ours, and the
same rules are not always applicable. In England, it is said, the
sheriff is not obliged to sell by auction, and if he do, the expense
of the auctioneer, and of the inventory will fall upon himself. Bul-
ler,J. 2 T. A*. 157, cited Wats. Sheriff 188. And if sold by
auction much below their real value, the sheriff is liable to an
action. 3 Campb. 520. The duty of the sheriff is to sell at
private sale, and it seems, if this be fairly done on a fieri facias,
the sheriff is not liable to an action, though the property be sold
much below its real value. 1 Si ark. 43. The reason is, that the
sheriff may sell to the plaintiff himself, at an appraisement, and,
therefore, the plaintiff ought not to be allowed to object to the
amount for which the sheriff sold, or even to his omitting to sell for
want of buyers on a venditioni exponas: the court saying, if the
plaintiff were dissatisfied, he might have set up a purchaser of the
goods himself. 1 Boa. Sf Pul 3.59.

Under our practice, goods levied on by fieri facias, ares^lu by

Sept. 1837.] OF PENNSYLVANIA. 497

[Lynch v. The Commonwealth.]

the sheriff at public vendue, and it is believed have always been
so. The auction laws exempted from their prohibitions sheriffs,
who sold by vendue, goods taken in execution. The act of the
21st of March 1806, sect. 11, directs the sheriff or coroner to whom
is directed any process of execution for the recovery of money, to
proceed to collect the same, and, if the defendant refuse or neglect
to pay the debt and costs, to levy on his personal estate, and there-
after make sale thereof, first having given six days notice, by not
less than six handbills, to be put up at such places as he shall
deem best calculated to give information, and with the money
arising from such sale, to pay the debt and costs, and make return
at the next court.

In the absence of any directions from the plaintiff, the sheriff
pursues the exigency of his writ by selling at public sale, and if he
is guilty of no fraud or neglect in relation to such sale, is not an-
swerable to the plaintiff, although the goods may have brought an
inadequate price. A grossly inadequate price may be evidence of
such fraud or neglect in the discharge of his duty, but does not,
per se, give the plaintiff a right of action. The plaintiff has, or is
presumed to have notice of the public sale, and has power to attend
and purchase like any other individual, or may, so far as respects
himself, delay it by his directions to the sheriff. If he neglects to
give directions or to attend the sale, the sheriff cannot know whe-
ther he desires a peremptory sale or not. A case may be easily
supposed, where the plaintiff having other security for his debt,
would be indifferent what price the goods brought, and would
complain if the sale did not proceed. Neither the act of assembly,
nor our practice, seems to make any difference in the duty of the
sheriff, whether the proceeding is on a fieri facias or venditioni
exponas. In both, in the absence of other directions, he complies
with his duty by advertising and selling. How far he might, from
a regard to the defendant's interests, be required or authorized to
postpone a sale where the goods would be palpably sacrificed, is
another question: but as to the plaintiff in the execution, it is clear,
that unless the sheriff is guilty of fraud or neglect, he is not answer-
able for merely proceeding to the sale of the goods as required by
his writ, though they bring an inadequate price.

Judgment reversed, and a venire facias de novo awarded.

vi. 3

498 SUPREME COURT [Pittsburgh

O'Brien against Davis.

In an action by an endorsee against an endorser, the drawer of the note is a compe-
tent witness to prove, that the note, although purporting to be negotiable, was not so in
fact as between the parties to the action ; and that the endorsements upon the note did
not exhibit truly the order in which they were made.

ERROR to the common pleas of Allegheny county.

Joseph O'Brien against Robert Davis. This action was insti-
tuted upon a note drawn as follows:

Pittsburgh, March 26th 1833. Six months after date, I promise
to pay to Joseph O'Brien or order, 69 dollars 70 cents without de-
falcation, value received. J. B. M'Koww.

Endorsed. Joseph O'Brien, Robert Davis, James Kelly.

Over the blank endorsement of the defendant, Robert Davis, the
plaintiff's counsel wrote: " I am surety to Joseph O'Brien for the
payment of this note."

The plaintiff to support the issue on his part, offered in evidence,
the deposition of J. B. M'Kown, the drawer of the note upon
which this action was instituted, for the purpose of showing that
this note although negotiable, and negotiated on its face, is not of
the character it purports to be, and that the name of Robert Davis,
the endorser, was on the note before Joseph O'Brien's name was
placed thereto, to which defendant's attorney objected. Per Curiam,
the case cited from 4 Watts 448, does not overrule that in 9 Serg.
4* Rawle 236; indeed, the point now raised, does not seem to have
been made in the case of Leech v. Hill. Pursuing, therefore, what

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