
    Swofford, Administrator v. Gray.
    A distributee of a decedent’s estate, is a competent witness for the administrator in a suit against the latter to recover money claimed to be due from the estate.
    Where an agent acts for his principal in transactions with others, the act of the agent is, in contemplation of law, the act of the principal; but when an agent makes a charge against his principal, he cannot insist that that entry is the act of the principal.
    Transactions of principal and agent are ordinarily governed by the same rules of evidence that apply to transactions between other persons.
    APPEAL from the Wayne Court of Common Pleas.
   Gookins, J.

This action was brought by Havens Gray against Swofford, as administrator of the estate of Alexander Gray, deceased, upon a liability incurred by tbe deceased in bis lifetime, to tbe plaintiff, chiefly for personal services. A trial by jury resulted in a verdict for tbe plaintiff for 1,142 dollars and 58 cents. New trial refused, and judgment.

On tbe trial tbe defendant offered one Berry as a witness, who was a grandson of tbe deceased, tbe only heir of a deceased child of tbe intestate, and, as such, entitled to a distributive share of tbe estate. He was excluded on tbe ground of interest.

Tbe statute declares that no person shall be rendered incompetent by reason of any incapacity from crime or interest; but a party to tbe action, or one for whose use tbe action is brought, shall not be competent. 2 R. S. p. 80, s. 238. In tbe Newcastle and Richmond Railroad Company v. Brumback, 5 Ind. R. 543, we held that a stockholder in tbe corporation was not a person for whose use tbe action was brought, within tbe meaning of tbe statute, and that be was a competent witness. In New York, they have a similar statute — tbe difference being that it excludes one for whose immediate use the suit is brought. Under that statute, tbe Court of Appeals held that a residuary legatee named in a will, was a competent witness for tbe executor, in a suit to recover moneys claimed to be due the estate. Freeman v. Spalding, 2 Kernan, 373. Although the word “immediate” is used in the New York statute, there seems to be no essential difference between that and our own. The interest of a distributee is more remote than that of a stockholder in a corporation. That of the latter is direct, and the money if recovered, will be applied to his immediate benefit; while moneys recovered by an administrator may or may not go to the heir, depending upon the situation of the estate. The general rule contained in the section, of not excluding for interest, made the witness competent; and the qualification in regard to beneficiaries, does not take one having a contingent interest only, out of the rule.

The appellee relies upon s. 301, 2 E. S. p. 97. Article 15, in which that section is found, supplies a substitute for bills of discovery; and besides the examination of parties, s. 301 provides for the examination, in like manner, of one for whose immediate use the suit is prosecuted or defended. The view we have taken, and the authorities referred to, show that a distributee is not a person for whose immediate use a suit like the present is prosecuted or defended, and that that section does not apply.

On the trial the Court instructed the jury as follows: “ If it is shown that the plaintiff was the regularly appointed agent of the decedent, and acted as such in pursuance of the appointment, the accounts of the agency, and record of the transactions done by the agent in and about the business of the agency, are presumed to be correct as against the decedent and those representing him, until their correctness is impeached.”

A bill of particulars annexed to the complaint is as follows: “The estate of Alexander Gray deceased, in account with Havens Gray, agent duly appointed by said Alexander Gray during his lifetime. The said agent claims a credit for the following payments made for said Alexander Gray, to-wit.” Then follow numerous items, amounting to 379 dollars and 81 cents. The record states that a book, purporting to be the record of charges and other transactions done by Havens Gray, as agent of Alexander Gray, and in his hand writing, was in evidence. As the charges contained in the bill of particulars appear to have been made on account of the agency, we presume they were entered upon the book referred to. No other part of the claim as set forth refers as specifically to the agency as that contained in the bill of particulars; and as the presumption is that an instruction given is applicable to the case, we presume that these were the accounts of the agency, and record of the transactions, referred to in the instruction.

J. B. Julian, for the appellant.

O. P. Morton, C. H. Test, J. M. Wilson, and M. Wilson, for the appellee.

This instruction contains a novel application of the doctrine of agency. Where an agent acts for his principal in transactions with others, no doubt the act of the agent is to be regarded in law as the act of the principal. Such is the case with a merchant’s clerk. But when an agent makes a charge against his principal, if he can insist that that entry is the act of the principal, he will have a short and easy method of establishing claims to any amount against him. If such a rule were to prevail, we think transactions between owners and factors, consignors, and commission merchants, clients and attorneys, and the numerous other agencies by which business is transacted, and in which entries are necessarily made, would soon be brought to an end. Transactions of principal and agent, are ordinarily governed by the same rules of evidence that apply to transactions between other persons. The instruction was wrong.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.  