
    GIMON vs. TERRELL.
    [TROVER FOR CONVERSION OF SLAVE.]
    1. Proof of agency. — As a general rule, 'the feet of agency must be proved by other evidence than the acts of the agent himself, before it can be assumed that his acts are binding on the principal; yet, where there is any evidence of an assent on the part of the jiriucip'al to the acts of the agent, or where the acts themselves are of such nature, or so continuous, as to furnish a reasonable ground of inference that they must have been known to the principal, and that he would not have permitted the agent thus to a'ct without authority, the acts themselves are admissible evidence to prove the agency.
    2. Proof of contract of hiring ; admissibility of 'agent’s acts as evidence against principal. — The question being, whether defendants employed plaintiff’s slave on their boat Without authority, or hired him from plaintiff’s authorized agent; and there being soihe evidence tending to show the agency, — the fact that the agent “ came down to the boat, and inquired about the slave,” is relevant evidence, as tending to show knowledge and assent on the part of the agent to the employment of the slave by the defendants, and thus tending to show a contract of hiring.
    3. Authority of agent. — An agent, who is authorized to hire out and look after his principal’s slaves, may, by hiring one of the slaves to a person who already has possession of him without authority, legalize the ■ subsequent employment of the slave by the hirer.
    -Appeal from the Circuit Court df Monroe.
    Tried before the Hon. C. W. Rapier.
    This adtion was brought by Dominick Gimon, against W. M. Terrell and others, owners of the steamboat Lucy Bell, to recover damages for the conversion of a slave named Brister, who was accidentally drowned while employed as a deck' hand on the defendants’ boat. The rulings of the court on the trial, to which exceptions were reserved by the plaintiff, and which are now assigned as error, are thus stated in the bill of exceptions :—
    “The defendants introduced a witness, by whom they offered to prove, that he (witness) saw one Peter Desplous, '■for one or two years before the drowning of Brister, at different times officiating in hiring and looking after the negroes belonging to tbe plaintiff; that he saw Desplous talking to Brister on the wharf, ■ while Bristér was employed -on the Lucy Bell, and gave him a piece of tobacco. The plaintiff objected to the examination of the witness for this purpose, — as well to the questions put to elicit this evidence, as to the evidence itself; bub Ms objections were overruled, andriie excepted.
    “.The,.defendants introduced another witness, and offered ■to prove by him, that said Peter Desplous, before Brister was drowned, came down to the Lucy Bell, and inquired of witness about Brister-; that he replied, Brister was on the Lucy-Bell; -and -that said Desplous then told Mm that plaintiff -was-siek, and had sent him to see about Brister. Plaintiff objected to the introduction of this evidence, — as well to the questions put to elicit it, as to the evidence itself; but the court overruled Ms objections, and he excepted. Plaintiff then introduced said Desplous as a witness, who testified, that he never acted-as plaintiff’s agent in the hiring of Ms negroes-.; that one Simmons was vhi-s clerk and agent for this purpose -at the time of Blister’s •death ; that he did not go to the Lucy Bell before,thehegro was drowned, but was requested by plaintiff, aiterrihe boy was drowned, to go down to tbe wharf, and ascertain- where he was; that he did go, and, on inquiry df >the second clerk of the Lucy Bell, was told that he was drowned, and that he reported this to the plaintiff
    “The plaintiff asked the'court to charge the qury, that, although they might believe, from the evidence, that Desplous was the agent of the plaintiff in hiring and looking after his negroes, yet such agency would not authorize Desplous to .ratify a previous conversion of Brister by the defendants, or to permit them to use the negro, so as to bind the plaintiff, if their original possession was unauthorized and illegal. The court refused to give this charge, and the plaintiff excepted to its refusal.”
    L. S. Lude, for appellant.
    Wm. Boyles, and S. J. Cumming, contra.
    
   R. W. WALKER, J.

The plaintiff’s objection to the evidence of the first witness for the defendant, was to the evidence as a whole. Consequently, if any portion of it was admissible, the objection was properly overruled. A part of-this evidence was, that the witness “saw Peter Desplons, fon one or two years before the drowning of Brister, at different'times officiating in hiring and looking after the negroes belonging to the plaintiff”. Whether Desplons was the agent of the plaintiff to hire or manage Brister, was one of the questions-an the case ; and we think that the evidence above quoted was relevant to this question. If is true thát'í as a general rule, the agency of a party must be proved 'by other evidence than his mere acts, before it can be properly assumed that such acts are binding on his :principal.-Scarborough v. Reynolds, 12 Ala. 259 ; McDonnell v. Branch Bank of Montgomery, 20 Ala. 317 ; McDougald v. Dawson, 30 Ala. 553. And it may also be true, that ¡mere acts, of .the assumed agent, unaccompanied by any, evidence tending for show that the principal had knowledge ofi orrassented thereto, are not even competent evidence to be, submitted to'the jury upon the question of agency. — See 2 Phill. Ev. (C. & H.’s Notes, ed. 1843,) 188—9 ; Scott v. Crane, 1 Conn. 255 ; Moore v. Patterson, 28 Penn. St. R. 505 (512-13) ; Forsyth v. Day, 41 Maine, 382; Dow v. Perrin, 2 Smith, (N. Y.) 325 ; Kidd v. Cromwell, 12 Ala. 648 (652). But, .¡where there is any evidence tending to show the assent of the. principal to the acts of the agent, these acts, in connectkimwith such evidence of the principal’s assent thereto, should be allowed to go to the jury. And if the acts of the alleged agent are of such a nature, or so continuous in their-character, as to furnish in themselves any reasonable ground’ of inference that the plaintiff knew of them, and would not have permitted the assumed agent thus to act in the absence of authority for so doing, the acts themselves are at least competent evidence to be submitted to the jury. — See McDonnell v. Branch Bank, 20 Ala. 313; Krebs v. O'Grady, 23 Ala. 726 ; Kent v. Tyson, 20 N. H. 121; 2 Phill. Ev. (ed. 1843,) 188-9 ; Cobb v. Lunt, 4 Greenl. 503. We think that the evidence under ’discussion* falls within this principle ; and although ibmay’betrue thabthe acts of Desplous referred to by- the witness were not of¡ such a character as to furnish of themselves sufficient evidence of the -principal’s knowledge and assent, yet the insufficiency of the testimony is not an argument against its competency. The question of- agency is matter of fact, which it is the province, of the jury to decide upon ; ;and if there is any evidence tending to-prove the-”-authority of the agent, its sufficiency and weight shou-kT-be left to the jury, under proper instructions from-the court. — McClung v. Spotswood, 19 Ala. 165.

In like -manner, a part, at least, of the evidence of the second witness, was- admissible; and the objection, feeing, to the entire evidence, was rightly overruled. Assuming that Desplous was the-agent-of the plaintiff to hire Blister, the- testimony that “before the negro was drowned, Desplous came down-to the Lucy Bell, and inquired of witness'abe-ut Blister ”, was relevant evidence, as it tended to show the agent’s knowledge of, and assent to, the employment cf. the negro by the defendants. If Desplous was* clothed with authority to “hire and look after” Blister, then-the faebthat he knew of,,and assented to, the employment of- the slave by another, would tend in some degree, however: slight! to prove a hiring? and any circumstances tending to showe a hiring of-the slave by the plaintiff’s, agent to the defendants, were-tsi’early admissible as evidence.

The charge asked was-double, asserting two distinct propositions ; one of which was, that “ although Desplous was the agent of the •plaintiff in hiring and looking after his negroes, this would not authorize Desplous to permit the defendants to use-the negro Brister, so as to bind the plaintiff, if their-: ©rigi,nal - possession was unauthorized and illegal”. It is clear -thabtlre property in-the negro was not changed by tkevsmauthorized and- illegal- possession of the defendants. The property being- still in the plaintiff, bis agent, empowered to hire and look aft’ér his-negroes, bad authority, by hiring the negro to the defendants, bo legalize their subsequent use of him, although their prior possession was unauthorized. One of the propositions of the charge being erroneous, the court did not err in refusing it entirely, even if the other proposition was correct, — as to which it is not necessary to express an opinion. — Slater v. Carter, 35 Ala. 679.

Judgment affirmed.  