
    David S. Raiford vs. William A. French.
    
      Evidence — Declarations of Agent.
    
    The declarations of an agent must he contemporaneous with, the act done, or they are inadmissible as evidence.
    B’s wife was the daughter of A, and A’s wife carried to B’s house a negro boy, where she left him, and he remained in B’s possession near three years. In trover by A against B for the conversion of the negro boy, the declarations of A’s wife, when carrying the negro boy to B’s house, were held inadmissible as evidence against B, to rebut the presumption of a gift arising from his possession.
    The declarations of B’s wife made several months after his possession commenced, also held inadmissible against him.
    BEFORE WARD LAW, J„ AT LAURENS, SPRING TERM, 1858.
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    “Trover for a negro boy, Mason, now about eleven years old. . ’ ■
    “Tbe defendant married Ann, daughter of tbe plaintiff, January 29, 1850. Dr. 'Jacks bad, a few months before, married Sarah, another daughter. Tbe plaintiff lived near tbe Newberry line; tbe defendant’s father on Saluda, thirty miles off. Tbe defendant took bis wife to bis father’s, and she staid there until November, 1850, when she went to her father’s to lie in. Tbe plaintiff .gave nothing to either daughter before January, 1851. Then in a book which he kept, Mrs. Jácks entered .the gift to hórself of a negro woman, Lodoiska, a horse, and some furniture; and in like manner, Mrs. French entered a gift to herself in these words: “ Jan. 1, 1851. I give to Ann French a negro woman, Madeline, worth eight hundred and twenty dollars; a horse, Charley,. one bunched and twenty-five dollars; saddle and bridle, fifteen dollars; bed, twenty-five dollars; cbairs, &c., twenty-four dollars; crockery, &c.” Mrs Jacks took Lodoiska, and with her a small girl, Alice, about five years old. Mrs. Jacks died in 1855, and Dr. Jacks yielded to the demand of the plaintiff; who, acknowledging the gift of Lodoiska, demanded Alice that had been in the possession of Dr. Jacks until his "wife's death.
    “ Mrs. French returned to her husband’s father’s in January, 1851, and with her went Madeline and a small boy, Albert, then five or six years old. Soon afterwards, she and her husband removed to a house of their own, near his father’s. In December, 1851; Albert was taken back to the plaintiff’s, (some fault having been found with him, as the defendant’s father testified.) In 1852, a small girl, Louisa, the property of W. Shelton, uncle of Mrs. French, was at the defendant’s. She was taken back; and in, February, or March, 1853, Mason, then about three years younger than Albert, was taken by the wife of the plaintiff and left at the ^defendant’s. In May, 1853, Mrs. French had her second living child, but Mason did not nurse. In September, 1853, Mrs. French and her children went to her father’s,- and there she remained during the absence of her husband, who went to Philadelphia in October, 1853, to attend medical lectures, and returned in January, 1854. All this time, Madeline with her male cbild) which was born in 1851, and Masoii, remained at the place of the defendant’s father — the defendant’s own plantation having-been sold in the fall' of 1853, and all his household goods removed to his father’s.
    “ In January, 1854, defendant and his .wife went to his father’s; there they staid until November,1855, when they moved to a new place hard by. She died December 17,1855 —immediately afterwards the plaintiff demanded Mason, and upon the defendant’s refusal to deliver him, this suit was brought.
    
      “ Some conversations of the plaintiff were in testimony: In August, 1853, he said to the defendant’s father that he was displeased with defendant for sending home Albert, who might then have been useful, whereas Mason was not fit for any use. In December, 1853, he spoke of Arnold's (defendant’s) negroes visiting his; and two or three years ago, he in an excited conversation said, in presence of Dr. Pressly, “If French had done as much for his son (and he has but one), as I have done for my daughter, they would have a pretty good start. I have given her furniture, a negro boy, and a negro woman that had a child, or was like to have one, and a d-d good race horse.”
    “ The plaintiff offered declarations of Mrs. Eaiford, plaintiff’s wife, made to an acquaintance on her way when she took Mason to defendant’s, and made to friends after her return; and he offered, also, declarations of the defendant’s wife, made during his absence in Philadelphia. These I excluded- — -but I permitted free inquiry as to all declarations made by the defendant’s wife before the defendant acquired possession, and as to all declarations contemporaneous with the delivery to him, or so connected with it as to be part of the res gestee, or to afford any explanation of equivocal circumstances.
    “In my instructions to the jury, I spoke of the presumption which arose from property passing, without explanation, into the possession of a married child; and said that the presumption when the child - had been long married, was the same in kind as when the marraige was recent, although in the former case it was feebler in degree. In all cases, I held that it might be rebutted by circumstances, as well as by express agreement.
    “ The jury found for the defendant."
    The plaintiff appealed, and now moved this Court for a new trial on the grounds:
    
      1. The declarations of Mrs. Eaiford, who carried the negro, Mason, to the defendant’s, (some three years after the defendant had settled,) should have been received to show the reason why she left the negro in the possession of her daughter, the defendant’s wife.
    2. Because the declarations of Mrs. French (the wife of the defendant), ought to have been received, showing the nature of the possession of herself and the defendant of the negro.
    3. Because his Honor charged the jury that the same rule of law which presumed a gift when property was permitted to go home with a man’s daughter, when they moved and settled, prevailed where property afterwards went into their possession.
    Henderson, for appellant,
    cited 1 N. & McC. 222; Harp. 374; 7 Eich. 57.
    Sullivan, contra.
   The opinion of the Court was delivered by

G-lovjsr, J.

The argument for a new trial has been confined to the two first grounds of appeal. A conclusive answer to the third will be found in the case of Luny vs. Lockhart, (4 McC. 251).

1. It was contended that Mrs. Eaiford, the plaintiff’s wife, was his special agent when she took Mason to the defendant’s house, and that her declarations are admissible as a part of the res gestee and will bind the principal. Admissions by the plaintiff made at any time will generally be received; but the admissions or declarations of his agent must be confined to the act to be performed and while the agency continues. The agency of Mrs. Eaiford can only be implied from the fact that sbe took Mason to tbe defendant’s bouse where be bas ever since remained, and tbe implication, therefore, restricts her authority to tbe single act of carrying. Tbe carrying of Mason is not a circumstance standing in such relation to tbe alleged gift as will explain its character or constitute a part of tbe res gesta. What sbe said to others on tbe wayside, qualifying what tbe law on delivery implies to be a gift, is extraneous and inadmissible. In an action for money paid as premium in effecting an insurance for tbe defendant, W. as tbe defendant’s agent requested an insurance and gave bis (W’s) own note to tbe plaintiff, and failed. Tbe plaintiff offered to prove tbe subsequent declarations of W, that tbe defendant would pay tbe debt. This was held inadmissible, because W. was agent to effect a policy, not to bind tbe defendant. (Millie vs. Patterson, 2 Wash. 0. C. B. 31). It was enough, perhaps, in this case that tbe declaration was not contemporaneous. Where tbe bolder of a check went into tbe bank, and when be came out said be bad demanded its payment and it was refused; it was held that tbe declaration was not admissible to prove a demand which, if made at all, was made in tbe bank and tbe conversation was with tbe witness after be bad left tbe bank and was returning. (Brown vs. Lusk, 4 Yerg. 210.) Mrs. Baiford’s declarations of what plaintiff said before sbe left borne were at a different time and not connected with tbe act of carrying which limited her agency, if any could be implied. No certain rule can be laid down, which, when applied to tbe circumstances, constituting tbe res gestae, will enable us to determine tbe admissibility of declarations. They must have relation to tbe act to be performed and be contemporaneous with it.

2. When tbe plaintiff sent Mason to bis daughter, tbe law implied a gift, and tbe declarations of tbe defendant’s wife, made during bis absence in Philadelphia and more than six months after bis possession commenced, were clearly inadmissible. Tbe rights of tbe defendant under tbe implication of a gift, bad already attached, and wbat bis wife afterwards and in bis absence said was properly excluded. In tbis respect tbe principal case differs from tbe case of Lark vs. Cunningham, (7 Rich. 57). There tbe admissions of tbe wife were contemporaneous with tbe act and before any rights bad attached.

Motion dismissed.

Wardlaw, WhitNER and Mukro, JJ., concurred.

O’Neall, J.,

dissenting. I dissent. I think Mrs. Raiford’s declarations when she was taking home tbe slave were competent, and ought to have been received.

Motion dismissed.  