
    *Danville Bank v. Waddill’s Adm’r.
    January Term, 1879,
    Richmond.
    I. Appeal — Evidence—Review.—On an exception to the refusal of the court to set aside the verdict and grant a new trial on the ground that the verdict is contrary to the evidence, if the evidence and not the facts is certified, the appellate couit will not reverse the judgment unless, after rejecting all the parol evidence of the exceptor, and giving full faith and credit to that of the adverse party, the decision of the court still appears to be wrong.
    II. Practice — Savins* Exceptions. — If an instruction is given to the jury without objection at the time, and no exception, or notice of exception, is taken or given before the verdict is rendered, the giving the instruction cannot be a ground for setting aside the verdict and granting a new trial of the cause.’
    III. Statement of Case. — In an action of ar-sumpsit to recover a sum of money in gold which had been delivered by the plaintiff to the defendant for safe-keeping, the only plea in the case was non assumpsit. There was no question as to the delivery of the gold to the defendant, but the defence was that lie had been robbed of it, and the effort of the plaintiff was to prove a fraudulent appropriation of it by the defendant conspiring with another person — Held :
    1. Evidence — Character of Defendant.— Evidence of the general character of the defendant by him is not admissible, and therefore the failure to produce it is not any ground for an inference unfavorable to his integrity.
    2. Same — Same—Instruction.—The counsel for the plaintiff in his argument before the jury having relied on the fact that the defendant had introduced no proof of his character, after the argument was concluded the court properly, of its own motion, instructed the jury that the character of the defendant as a party to the suit was not involved in the issue to be tried; that he had no right to introduce proof of his general character, and that the jury should disregard all *argument made before them by the plaintiff’s counsel, based on the failure of the defendant to introduce such evidence.
    IV. Jurors Impeaching Verdict. — A new trial properly refused, which was asked based upon the affidavit of two of the jurors, that they had misapprehended the instruction of the court, and thought it required them to give full credit to the testimony of the defendant who had given his testimony in the case; the instruction given by the court having been accompanied with the further instruction at the instance of the plaintiff, that the plaintiff might introduce evidence to impeach the defendant’s character as^ witness.
    V. Conspiracy — Admission of Evidence.— Before evidence of the acts or declarations of one who is claimed to have been a conspirator with another to commit any offense, or actionable wrong, the judge must be satisfied that,, apart from them, there are prima facie grounds for believing in the existence of the conspiracy.
    VI. Same — Same—Declarations of Conspirators. — In such a - case, after the conspiracy has been consummated, the common purpose carried fully into effect, no subsequent declarations of any of the conspirators, not made in the presence of the others, are admissible as evidence against the latter.
    
      VII. Agency — liia-Mlity in Case of Robbery. —If a person to whom a sum of money has been entrusted for safe-keeping is robbed of it, he is not liable to the person who entrusted him with it for the money.
    This is the sequel of the case of the Dan-ville Bank v. Waddill, reported in 27 Gratt. 448. Waddill having died whilst the cause was pending in this court, on its return to the circuit court of Danville it was revived against his administrator with the will annexed. The case was assumpsit, and the only plea non assumpsit, and the object of the suit was to recover the sum of $4,865 in gold, which the bank had put into the hands of Waddill for safe-keeping in April, 1865. There was no dispute as to the fact that the gold had been delivered by the directors of the bank to Pleasant Waddill for safe-keeping, it being the time when the enemy were approaching Danville. The ground of de-fence was that he had been robbed of it, and the *only controversy before the jury was, whether he had been robbed, or whether he had fraudulently appropriated the money to his own use. And the plaintiff endeavored to establish the fraudulent appropriation by evidence of the possession of considerable quantities of gold, from 1865 down to 1868, by his son, John M. Waddill, and of what he did with it, and said about it.
    On the trial of the cause the court excluded this evidence from the jury, and there was a verdict and judgment for the defendant. And the plaintiff obtained a writ of error and supersedeas.
    Four bills of exceptions were taken in the case, but they all seem to have been taken after the verdict was rendered, and it does not appear that any notice of intention to except to the ruling of the court was given at the time, or at any time before the verdict.
    The first exception is to the refusal of the court to grant the plaintiff a new trial on the ground that the verdict was contrary to the law and the evidence; and on the motion of the plaintiff the court certified the evidence. Waddill had given his evidence on the former trial, and his testimony as then given was proved on this, and there was the testimony of other witnesses which corroborated his statements.
    The second exception relates to an instruction given to the jury. The plaintiff asked for a new trial on the ground that after the argument had been concluded, in which argument the counsel for the plaintiff relied upon the fact that the defendant had offered no proof of the character of Waddill, before the retirement of the jury the court of its own motion instructed the jury that the character of Pleasant Waddill, the original defendant in the cause, was, as a party to the suit, not involved in the issue to be tried, and that the defendant had no right to introduce *proof of the general character of said Pleasant Waddill as a party to the suit originally; that the jury should disregard all argument made before them by the counsel for the plaintiff based upon the failure of the defendant to introduce before the jury testimony as to the general character of Pleasant Waddill as a party to the suit. But the court, at the request of the plaintiff’s counsel, accompained the instruction with the following explanation to the jury, to-wit: that as the said Pleasant Waddill had testified as a witness at a former trial, and as this testimony at said former trial was proved before the jury at the present trial by a witness who heard it given, the plaintiff had a right at the present trial to introduce evidence before the jury to impeach the said P. Waddill as a witness by proving his general character; the plaintiff, by counsel, insisting that this instruction given by the court of his own motion was erroneous and calculated to mislead the jury, moved the court because of said improper instructions to set aside the verdict and award a new trial; but the court overruled the motion.
    After the foregoing motion had been overruled the plaintiiff renewed the motion, and offered to read in support thereof the joint, affidavit of two members of the jury which rendered said verdict. In their affidavit they say they were induced to believe that the law required the plaintiff to prove that Pleasant Waddill was not robbed; that the said Wad-dill having stated in his testimony that he was robbed, in consequence of what the court said to the jury about the argument of counsel as to the character of Waddill, we were bound to give full credit to Waddill’s testimony; we therefore concurred in the verdict of the jury for the defendant, which we would not have done if we had believed that we were authorized to discredit *Wad-dill’s testimony. But the court refused to receive the said affidavit, or permit it to be read, because the jury had been instructed that evidence might have been offered to impeach the character of Waddill as a witness, and overruled the motion. This was the third exception.
    The fourth exception is to the refusal of the court to admit the deposition of P. A. Hay, offered by the plaintiff. This witness makes various statements in reference to the possession of gold by John M. Waddill, the son of Pleasant Waddill, and of what John M. Wad-dill stated to the witness. After the refusal of the court in the first instance to admit the deposition, the plaintiff’s withdrew their offer of said deposition and introduced evidence tending to show that Pleasant Waddill, who was a man of large estate, had given to his son, the said John M. Waddill, $1,700 of said gold subsequent to the 11th of April, 1865, viz: in 1866, 1867, and after having introduced said evidence the plaintiff again offered to introduce said deposition; to the introduction of which deposition as a whole, and to each question and answer thereof, the defendant objected. Whereupon the court examined said deposition, and struck from the same every question and answer asking or detailing any statements or admissions of said John M. Waddill. To the striking out which questions and answers the plaintiff objected; but the court overruled the objection; and the plaintiff excepted.
    
      • J. Alfred Jones and E. Barksdale, for the appellant.
    Ould & Carrington, for the appellee.
    
      
      Appeal — Evidence—Review. — See Daingerfield v. Thompson, 33 Gratt. 136 and note; Proctor v. Spratley, 78 Va. 254; Moses v. Old Dominion. I. & N. W. Co., 81 Va. 22; Hanriot v. Sherwood, 82 Va. 4; Moses v. Old Dominion I. & N. W. Co., 82 Va. 19, dissenting opinion; Muse v. Stern, 82 Va. 33; 4 Min. Inst. (2nd Ed.) 827; Dean's Case, 32 Gratt. 912 and note.
      
    
    
      
      Practice — Savins* Exceptions. — 4 Min. Inst. (2nd Ed.) 826; Cose v. Marple, 24 W. Va. 354, citing the principal case with approval; Telegraph Co. v. Hobson, 15 Gratt. 122; Martz v. Martz, 25 Gratt. 368; Peery v. Peery, 26 Gratt. 320; Winston v. Giles, 27 Gratt, 530; Page v. Clopton, 30 Gratt. 415 and note; Dank v. Rodeheaver, 26 W. Va. 294.
    
    
      
      Jurors Impeachins* Verdict. — See Steptoe v. Flood’s adm’r, 31 Gratt. 323 and note; 4 Min. Inst. (2nd Ed.) 844, 845.
    
    
      
       Conspiracy — Evidence.—As sustaining the rule laid down in the principal case to the effect that before the declai*ations of a co-conspirator can be admitted in evidence against the accused there must be prima facie evidence in the opinion of the court of the existence of the conspiracy. See Cain’s Case, 20 W. Va. 694, citing the principal case and Williamson v. Comm. 4 Gratt. 547; Sands' Case, 21 Gratt. 895; Brown’s Case, 86 Va. 935.
    
   *BURKS, J.

This is the second time this case has been before this court.

At the first trial of the issues on the pleas of non-assumpsit and the act of limitations, the only pleas as shown by the record ever filed in the cause, there was a verdict and judgment thereon for the defendant. That judgment, on writ of error, was reversed by this court on the single ground that the circuit court erred in refusing to give a proper instruction to the jury bearing on the act of limitations. No other question was made by the record or decided by this court. 27 Gratt. 448. While the cause was pending here the defendant died. After it was remanded for a' new trial, it was revived against the personal representative of the defendant, and at the second trial there was again a verdict for the defendant and judgment accordingly, the issues being the same as on the first trial, and the case is here on a writ of error to that judgment, awarded at the instance of the plaintiff.

The assignments of error are based on four bills of exception taken by the plaintiff •to rulings of the court at the last trial, and I propose to consider them in the order in which the bills are numbered.

After the jury had rendered their verdict, the plaintiff by counsel moved to set it aside, on the ground that it was contrary to the evidence. The motion was overruled, and to this action of the court the first bill of exceptions was taken.

The assignment of error, founded on this bill, may readily be disposed of. The facts proved on the trial are not certified. The evidence only, as given to the jury, is set .out on the motion of the plaintiff’s attorney. It does not appear that there was any re-' quest to certify the facts.

If the rule, as laid down in the leading case of Bennett v. Hardaway, 6 Munf. 125, was strictly applied, this action *of the court could not be reviewed at all. The principle upon which that decision rests is, that the revising court should have the same lights and act upon the' same data as the inferior court, and that it will not undertake to determine what crqdit should be given to the oral testimony of witnesses, whose credibility it has not the same means of testing as were possessed by the court and jury who saw and heard the witnesses testify and observed their whole demeanor. This decision has never been overruled; but while the principle on which it was grounded has been adhered to, the rule established by it has, by a long line of cases subsequently decided, been modified in its application. The following are some of the more important cases: Carrington v. Bennett, 1 Leigh, 340; Ewing v. Ewing, 2 Leigh, 337; Green v. Ashby, 6 Leigh, 135; Rohr v. Davis, 9 Leigh, 30; Pasly v. English, 5 Gratt. 141; Vaiden’s case, 12 Gratt. 717; Carrington v. Goddin, 13 Gratt. 587; Bull’s case, 14 Gratt. 613; Gimmi v. Cullen, 20 Gratt. 439; Read’s case, 22 Gratt. 924; and cases in more recent volumes of Grattan’s Reports.

The rule, as modified, is stated in different forms by the judges. See what is said by Judge Joynes in Gimmi v. Cullen, supra. In Read’s case, upon a review of the previous decisions, Judge Moncure, after stating that regularly the facts should be certified, proceeds to say that where the facts are not certified “the appellate court cannot revise the judgment unless the evidence be certified, and then only on certain conditions; that is, the court will not in that case reverse the judgment unless, after rejecting all the parol evidence for the exceptor, and giving full faith and credit to that of the adverse party, the decision of the court still appears to be wrong.” The rule thus stated I understand to be now the established rule. It is stated in the same terms in some more recent cases'. See Scott & Boyd v. Shelor, 28 Gratt. 891, 900.

*Applying this-rule, the judgment of the circuit court refusing to set aside the verdict of the jury, because, as alleged, it was contrary to the evidence, if not plainly right, does not, at least, appear to be wrong. Rejecting all the parol evidence of the plaintiff and taking, as the rule requires, all the evidence of the defendant to be true, the defence set up, to-wit: that the defendant had been robbed of the money, for the recovery of which the action was brought, was made out. It is only necessary to refer to the testimony, without repeating it, of the defendant’s testator, proved as given on the former trial, and to the testimony of others, who profess to have been eye-witnesses of the robbery. If these witnesses told the truth, (and on this branch of the case it must be assumed that they did.) the alleged robbery was established by the proof.

The second bill of exceptions is to the refusal of the court to set aside the verdict for an alleged misdirection of the jury by the court.

It does not appear by this bill that when the instruction was given to the jury the plaintiff’s counsel objected to it. On the contrary, the inference is, that if he had any objections, he waived them; for, after the instruction had been given, the court, at the request of the plaintiff’s counsel, followed it with an explanation asked for by that counsel, and so far as appears, the instruction, accompanied by the desired explanation, went to the jury, if not with the approbation of the counsel, at least without objection. Certainly there was no exception then taken or reserved. The plaintiff’s counsel took all the chances with the jury, and after an adverse verdict, sought to have it set aside on account of an alleged misdirection, the explanatory part of which was given at his own instance, and the whole, as explained, not objected to. Can he be heard, under these circumstances, to complain of error in the instruction?

*In jury trials, I have always understood the rule to be, that if a party objects to a ruling of the presiding judge during the progress of the trial, either in admitting or excluding evidence, or giving or refusing instructions, or otherwise, and intends to except to such ruling, he must make known such intention at the time of the ruling, or at least before verdict, and if the bill of exceptions cannot be drawn up at once, liberty should be reserved to do so during the term, and if he neglect to prefer exceptions until after the verdict, he will not then be allowed to do so.

One of the reasons for the rule requiring this promptness in taking the exception and giving notice thereof, is that an exception taken and made known for the first time at a subsequent period in the trial might affect very injuriously the rights of the opposing party; for, if he have reasonable notice of the exception, he may, perhaps, have it in his power at the time or during the trial to obviate or counteract it, and it would be unjust to allow his adversary to insist on the exception, and have the benefit of it, after, by his own negligence, or it may be by his contrivance, he has made it impossible to meet it.

Such I understand to be the principles deducible from the cases of Wash. & New Orleans Tel. Co. v. Hobson, 15 Gratt. 122, 138; Martz’s ex’or v. Martz’s heirs, 25 Gratt. 361; Peery’s adm’r v. Peery. 26 Gratt. 320, 324; Winston v. Giles, 27 Gratt. 530; and Page v. Clopton, 30 Gratt. 415. The rule was not strictly applied in the last-named case, because it was not a proceeding inter partes, and for other reasons stated in the opinion delivered in the case.

The rule is stated quite broadly by Judge Moncure in Winston v. Giles. “Formerly and regularly,” says he, “a bill of exceptions purports to be tendered and signed when or immediately after the opinion excepted to is given; and certainly, if convenient, the facts could then be set out more accurately and with less difficulty than *at any other time. It is admitted in all cases, everywhere, that at least the exception must be taken at the time, so as to give notice of it to the adverse party; and some of the cases require that the substance of the exception should be stated in writing at the time.”

I am aware that the president of this court, in the opinion in Bull’s case, 14 Gratt. 613, 625. 626. speaking of the rule referred -to, said: “That if no objection be made at the time the instruction is given, nor an exception be then taken, or the point saved, but objection be made for the first time after verdict, and in the form of a motion to set it aside, the court will consider whether, under all the circumstances, the party has been prejudiced by the instruction; and if of opinion that a just verdict has been rendered, according to the law and the evidence, wili not set it aside on account of that objection.” And the decision in Stevenson v. Wallace, 27 Gratt. 77, 93, 94, accords with what has just been cited from Bull’s case. See also what is said in Johnson v. Macon, 1 Wash. 4, 5; Guerrant v. Tinder, Va. R. (Gilmer) 36, 41.

Whether the general rule which seems to be established by the decisions first before referred to is to be regarded as modified by the cases last named, in its application to instructions to which objection is made for the first time by way of motion to set aside the verdict of the jury, it is not necessary, in my judgment, to determine in the present case; for if the instruction given was liable to exception at all, 1 think that the plaintiff was precluded by the circumstances already adverted to from making objection after verdict.

But if the bill be regarded as well taken and as properly presenting to this court for decision the question whether the instruction complained of was erroneous or not, I have no difficulty in reaching a satisfactory conclusion.

*The plaintiff’s counsel, in his argument before the jury, relied on the fact that the defendant had offered no proof of the character of his testator, Pleasant Waddill, the former defendant, and after the argument of the counsel on both sides had been concluded, the court, of its own motion, instructed the jury before they retired that the character of the said Pleasant Waddill, as a party to the suit, was not involved in the issue to be tried; that the defendant had no right to introduce proof of the general character of said Pleasant Waddill as a party to the suit (originally); and that the jury should disregard all argument made before them by the plaintiff’s counsel, based on the failure of the defendant to introduce testimony as to the general character of said Waddill as such party; and at the instance of the plaintiff’s counsel, the court added the following: “That as the said P. Waddill had testified as a witness at a former trial, and as this testimony at said former 1rial was proved before the jury at the present trial by a witness who had heard it given, the plaintiff had a right at the present trial to introduce evidence before the jury to impeach the said Waddill as a witness by proving his general character.”

The argument of the counsel, which the jury were directed to disregard, was evidently based on the assumption that the character of the defendant’s testator for honesty and integrity was in issue, as an original party to the cause, and he deduced an inference unfavorable to the defence from the failure of the defendant to offer evidence in support of that character.

This was an erroneous assumption. In civil cases, the rule is, that evidence of general character is never admissible unless the nature of the action involves the general character of the party, or goes directly to affect it, such as an action by the husband or father for seduction, and generally actions of tort wherever the defendant is ;|!charged with fraud from mere circumstances. This kind of evidence is rejected wherever the general character is involved by the plea only,, and not by the nature of the action. It is not received in an action of assumpsit, although the plea avers fraud by way of defence. To this effect are all the standard elementary treatises on evidence. 1 Greenleaf on Ev. §§ 54, 55; 1 Wharton on ,Ev. § 47; 1 Best on Ev. §§ 257, 258; 2 Starkie on Ev. (Metcalf’s ed.), 367 (side pj, et seq.; l Phillip’s Ev. 757, and notes. The authorities, English and American, seem to be uniformly the same way. I content myself with a notice of a few only of the adjudged cases.

Humphrey v. Humphrey, 7 Conn. R. 116, was a case of petition by the husband for divorce from his wife for alleged adultery-After testimony had been given on behalf of the petitioner tending to raise the presumption of adultery on the part of the wife, she offered, by way of rebuttal, evidence of her fair character. Dogget, J., in delivering the opinion of the court, which is often cited, said that in no instance within his knowledge had such evidence been received in any civil proceeding unless character was thereby put in issue. “Causes charging cruelty, gross fraud, and even forgery,” he said, “are often agitated in suits by individuals; and the result not unfrequently deeply affects the property and reputation of the party; yet no individual has been permitted to attempt to repel the proof by showing a good reputation. * * * The present is a civil suit. Character is not put in issue by the proceedings; and if it can be given in evidence, it may be given in evidence in all inquiries into facts affecting the reputation in other civil cases. '' s principle would lead to great uncertainty, and be productive of no benefit in the administration of justice.”

In Anderson’s ex’rs v. Long & others, 10 Serg. & R. 55, the action was debt on bond. Fraud of plaintiff’s testator, *James Anderson, was one of the de-fences. Evidence of the character of Anderson for honesty and integrity was offered. Chief Justice Tilghman. in the opinion of the court delivered by him, said: “The plaintiff’s counsel say that the character of James Anderson was put in issue here because the defendants accused him of fraud; but this is not putting his character in issue. By the same mode of reasoning the defendant’s character is put in issue in every action of assumpsit, because the declaration charges him with an intent to deceive and defraud the plaintiff. Indeed, in most of the controversies in courts of justice it maybe said, with some degree of truth, that character- is in question, because an honest man would no.t act with injustice. But putting character in issue is a technical expression and confined to certain actions, from the nature of which the character of the parties, of some of them, is of particular importance. Such is the action brought by one man against another for seducing his wife and having criminal conversation with her. * * So in an action of slander the plaintiff in his declaration asserts his own good character, and avers -the intent of the defendant to rob him of it. He puts his character in issue, therefore, and the defendant is ,at liberty to impeach it. But it has never been supposed that the character is put in issue merely by the charge of fraud made by one party against the other.”

In Nash & others v. Gilkeson & others, 5 Serg. & R. 352, the action, as in the present case, was assumpsit; and the plaintiffs having given evidence which, the defendants supposed, tended to impeach the honesty of Gilkeson, their testator, they offered evidence in support of his character, which was admitted. Gibson, J., speaking for the court, said: “There cannot be the least doubt but the evidence was improperly received. Gilke-son’s general character was not put in issue by the nature of the action; *and it never was pretended that where a party is incidentally charged by the evidence with the commission of a particular fraud, that the charge can be rebutted by evidence of general good character. To this rule I know of no exception.”

If the argument of the counsel was, to any extent, based on the supposition that it was competent for the defendant to adduce evidence in support of the character of his testator for truth, the testimony of the testator on the former trial being before the jury, the argument was equally objectionable. The testator’s character for truth had not been impeached by direct evidence, or in any of the modes specified in George & others v. Pilcher & others, 28 Gratt. 300, or in any way known to the law; and until it was so impeached, no evidence in support of it was admissible.

It has been held that if a person on trial for a criminal offence offer no evidence of his good character, although he may do so if he will, no legal inference can arise from such omission that he is guilty of the offence charged, or that his character is bad; nor will such omission authorize an argument to the jury against his general good character. State v. Upham, 38 Maine R. 261.

It seems very clear to me, therefore, that no error was committed in giving the instruction complained of. While great latitude should be accorded to counsel in arguments to the jury, and their just privileges be in no way abridged, the presiding judge would be wanting in duty if he should remain passive and allow the jury to be misled by an argument addressed to them entirely foreign to the issue — wholly unwarranted by the law and the facts of the case.

After the motion for a new trial for the cause stated in the second bill of exceptibns had been overruled, the motion was renewed, founded on the affidavit of two of the jurors to the effect, substantially, that they had mistaken *the law of the case in one respect and had been misled by the instruction before referred to. The motion was again overruled and the third bill of exceptions taken.

The general rule is, and the exceptions to it are rare, that the testimony of jurors ought not to be received to impeach their own verdict. Bull’s case, 14 Gratt. 613; Read’s case, 22 Gratt. 924; Steptoe v. Flood’s adm’r, supra p. 323 (decided during the present term).

In Bull’s case the authorities are reviewed, and in Steptoe v. Flood’s adm’r the reasons given by Judge Moncure why the affidavits of jurors to impeach their own verdict should be rejected are: 1st, Because they would tend to defeat their own solemn acts; Sd, Because their admission would open the door to tamper with jurymen after they have given their verdict; 3d, Because they would be the means, in the hands of a dissatisfied juror, to destroy a verdict at any time after he had assented to it. These are sound reasons; and while there are exceptions to this general rule, I am of opinion that the present case does not fall within any of the excepted classes. Indeed, the decision in Harshbarger’s adm’r v. Kinney, 6 Gratt. 287, 300, would seem to be an authority for the rejection of the affidavit in this case.

The fourth bill of exceptions is the basis of the last assignment of error to be noticed. In the course of the trial the plaintiff offered in evidence the deposition of P. A. Hay. On objection raised by defendant’s counsel the court excluded from the jury certain portions of the deposition, and this action of the court is assigned as error.

The excluded portions of the deposition were declarations, as represented by the witness, made to him by John M. Waddill, a son of the defendant’s testator, Pleasant Waddill. Under the general rule excluding hearsay evidence it is admitted that these declarations *would not be competent evidence in the suit against Pleasant Waddill’s representative; but it is claimed by the plaintiff in error that the alleged loss, by robbery, of the gold entrusted to the defendant’s testator for safe-keeping was a mere pretence; that there never was in fact any such robbery; that the gold was fraudulently converted by Pleasant Waddill to his own use with the active assistance of his son; that there was a conspiracy or concerted scheme between the two to that end; and that, therefore, the excluded declarations, which related to the gold, were admissible in evidence as the declarations of a conspirator.

The rule regulating the admission of the acts and declarations of one conspirator as evidence against another is stated by a modern English author with his usual accu-racv and conciseness as follows: When two or more persons conspire together to commit any offence or actionable wrong, everything said, done or written by any one of them .in the execution or furtherance of their common purpose, is deemed to be so said, done or written by every one, and is a relevant fact as against each of them; but relations of measures taken in the execution or furtherance of any such common purpose are not relevant as such against any conspirators, except those who make them, o>r are present when they are made. Evidence of acts relevant under this article may not be given until the judge is satisfied that, apart from them, there are prima facie grounds for believing in the existence of the conspiracy. Steven’s Digest of the Daw of Evidence (2d ed.), art. 4, p. 6.

This clear statement of the rule is sustained by the best elementary works on evidence and by the adjudged cases, to some of which I here refer, without comment. 1 Phil, on Ev. (Cowen & Hill's notes), 5 Amer. ed. 168; 2 Russell on Crimes (8th Amer. ed.), 696, et seq.; 2 Best on Ev. § 508; 2 Arch. Prac. and Plead. 119 (side p.) ; 1 *Greenleaf’s Ev. § 111; 1 Wharton’s Ev. §§ 1205 1206; King v. Hardy, 24 How. St. Trials, 451-3; Chief Justice Marshall in Burr’s case, 2 Burr’s Trials, 539; Queen v. Blake, 6 Ad. & El. N. S. (51 E. C. L.) 126; Sands’ case, 21 Gratt. 871; Clawson v. State, 14 Ohio St. R. 234; Clinton v. Estes, 20 Ark. R. 216, 224, 225; Ormsby v. People, 53 New York R. 472.

Further, it is well settled, both on principles and authority, that after the conspiracy has been consummated, the common purpose carried fully into effect, no subsequent declarations of any of the conspirators not made in the presence of others, are admissible as evidence against the latter.

Under the rules and principles which have been stated, the first enquiry is, does the evidence admitted establish the alleged conspiracy? Does it furnish prima facie grounds for believing in the existence of the conspiracy, so as to make it proper to admit as evidence the declarations which were excluded ?

A belief in the existence of the conspiracy involves, of necessity, the assumption _ that the alleged robbery was never committed, that Pleasant Waddill swore falsely, and that the witnesses who sustained him in his statement either perjured themselves or were deceived by the management and artifice on his part.

This is a strong assumption, upon the evidence in the case, and one which the. jury and the court below must have considered not justified, or the verdict and judgment would have been different. As a concessum, however, for the purposes of the argument, let it be that Pleasant Waddill, instead of being robbed of the gold, fraudulently retained it for his own use; how is the alleged conspiracy made to appear?

The following circumstances are relied upon to show it:

At the time the robbery is said to have occurred (May, 1865) John M. Waddill resided in the town of Danville, *his father resided on his farm, a little way off, it seems. In the fall of 1865 John M. Waddill removed with his family to Madisoq, North Carolina, .where he opened a store and commenced merchandising. According to a statement of his wife, while on a visit with her to his father in the fall of 1866, his father gave him $200 in gold coin, and on another visit, in the fall of the next year (1867), he received $1,500 in like coin. These are the only sums of money directly proved to have been received by him traceable to his father. The witness Hay says that he always noticed that when John M. Waddill went to Danville he seemed to have more gold on his return than when he left He speaks of having seen him on one occasion with a bag of gold, which he dropped in the streets of Madison while drunk, and although he did not count it, he supposed it amounted to some four hundred, or five hundred, or six hundred dollars. He could not tell the precise amount. This was about February 1868, and, therefore, not long after the time when, as stated by Waddill’s wife, he received the $1,500. An 'alleged statement made by Waddill to the witness in connection with the gold dropped in the street was amongst the declarations excluded from the jury. This was the most important. The other declarations which were excluded, if ever made, do not appear very material. This witness further speaks of seeing Waddill on various occasions paying out gold, not in large quantities, for purchases made, and exchanging gold occasionally for greenbacks. Another witness speaks of having seen him on one occasion in a drunken spree taking gold from his trunk and scattering it about his room. He could not say what the amount was. It was proved by Waddill’s wife that he received $250 in gold coin from Texas in February, perhaps 1868, and Hay also says that he knew that he received from Texas about $180 in gold. It is not clear whether these witnesses *were speaking , of the same occasion or of different occasions when these amounts were received. It was also proved that Waddill took in gold for sales made at his store.

These, I believe, are all the circumstances of any moment relied on to show the alleged concert between the parties to defraud the bank of the gold entrusted to its depository. They do not, I think, make a prima facie case of conspiracy. Giving credit to the witnesses, the only gold proved to have been received from his father by John M. Waddill was the two sums mentioned by his wife, one of which was received eighteen months after the alleged robbery, and the other two and a half years thereafter. If the gold given to him by his father was the gold of the bank, the evidence admitted was not sufficient to show guilty knowledge on the part of the son. It appears that the father was a wealthy man, or at least a. man of means, and in his testimony proved as given on the first trial he stated that he had received gold from several sources; the amounts not mentioned.

But without further elaboration upon the assumption that the gold was fraudulently retained by Pleasant Waddill, if there was any conspiracy at all between these parties, it was either that the son should dispose of the gold as his father’s agent and account to him for it, or else that it should be appropriated and divided between them.

Upon the first hypothesis, if true, the excluded declarations might perhaps be admissible as evidence in the case, upon the principle that whatever an agent does or says in reference to the business in which he is at the time employed and within the scope of his authority, is done or said by the principal, and may be proved as well in a criminal as a civil case, in like manner as if the evidence applied personally to the ’^principal-. Amer. Fur Co. v. United States, 2 Peters, 358, 364.

But no such agency is proved in this case. In . fact, it is expressly disproved; for Mrs. Waddill says that Pleasant Waddill gave the money to her husband and he spent it; and the whole evidence goes to show that the gold which John M. Waddill had, from whatever source it came, was treated and used by him as his own. There is not a title of proof that he ever accounted to his father for a dollar of it, or agreed to do so. Nor is there any proof of any agreement of any sort between them, nor of any admissions or declarations of Pleasant Waddill concerning any gold transactions with, his son.

On the. proofs, therefore, there was no prima facie case, nor indeed any case made, establishing the supposed agency, and hence, on the first hypothesis, the declarations were properly excluded.

If, on the other hand, the second hypothesis be warranted by the evidence, to-wit: that the two fraudulently combined to appropriate the gold and divide it between them, then'the plot being accomplished, the subsequent declarations of neither could be used as evidence against the other. Such was the principle sanctioned by the court of queen’s bench in the case of Queen v. Blake, before cited. There the defendant was charged with conspiring with one Tye and others to defraud the revenue, and it was shown by the prosecution" that 'the defendant was a landing waiter and Tye an agent for importers at the custom house; it being their duty each to make entries of the contents of cases imported, so as to check the other. On thirteen occasions they made false entries, entering packages at less than their real bulk. Tye’s check-book was offered by the prosecution for the purpose of *showing by the counterfoil that the defendant received from him part of the money of which the government had been defrauded by their operations; but this was rejected by the court, on the ground that the satement was made after the plot was consummated, and related only to the distributing of plunder.

Upon 'the whole case, I am of opinion that there is no error in the rulings of the court below, and that the judgments complained of should be affirmed.

It is worthy -of notice that although the officers of the bank had full knowledge, as early as May, 1865, of the intention of Wad-dill to set up the robbery as a defence against the claim of the bank, and must have known the facts and the circumstances on which he relied, no suit was instituted against him until March, 1872, nearly seven years after the alleged robbery. While the case was pending in this court on the first writ of error, the defendant and his son, John M. Waddill, both died. At the second trial the chief witnesses for the plaintiff were the wife of John M. Waddill and P. A. Hay, who, it would seem, testified in the case for the first time, the former under circumstances of estrangement from her husband’s family connections and under feelings of resentment, in which Hay avowedly sympathized. The last jury that tried the case was a special jury selected under the statute, and had means of weighing the testimony and testing the credit of the witnesses of which this court is not possessed. The v’erdict of such a juty, approved by the trial judge, negativing the assumption on which the charge of conspiracy was necessarily founded, is entitled to some consideration in the appellate court in determining the question whether a prima facie case of conspiracy was made out by the evidence.

*ANDERSON and STAPLES, J’s, concurred in the opinion of BURKS, J.

CHRISTIAN, J.,

concurred in the opinion of BURK'S, J., as to the refusal of a new trial, on the ground that the verdict was contrary to the evidence. He dissented on the second exception. He considered that this was a case which makes an attack upon character. The suit charged Pleasant Waddill with fraud. He also thought that the court erred in excluding the statements of John M. Waddill, the son of Pleasant Waddill.

MONCURE, P., concurred in the opinion of CHRISTIAN, J.

Judgment affirmed.  