
    Edward S. Rowland vs. Henry Huggins.
    Upon a scire facias brought against H as the trustee of B, the question was whether certain money in the hands of H belonged to B, or to one E who claimed it and assumed the defense. This money was the proceeds of' certain notes indorsed by B and E, which H had received from B and procured discounted. H testified in behalf of the plaintiff, that, at or about the time he received the notes, he also received a letter from B informing him that the notes were about to be sent and requesting him to get them discounted, which letter was his only authority in the matter. The plaintiff then offered the letter in evidence, but the court refused to admit it. After the plaintiff had rested, evidence was introduced by the defense to show that B was . acting wholly as the agent of E in sending the notes to H, and that the money was procured by him for E’s benefit. The plaintiff then offered the letter in evidence again, claiming it to be now admissible as the declaration of the agent of E while engaged in the duty of his agency, and as showing the character of the transaction; and the court admitted it. The letter was important only in its omission to refer to E as having any interest in the matter. After the letter had been read to the jury it was discovered that it was dated one day prior to the time when E authorized B to act as his agent in getting the notes discounted, and the defendant requested the court to charge the jury that if they should find it to have been written and sent before the commencement of the agency, they should lay it out of their consideration; which the,court omitted to do. On a motion of the defendant for a new trial, it was held, that, if the letter was written after the agency commenced, it was admissible as the declaration of an agent while engaged in the business of his principal; and if before, that it was still admissible as the authority under which H acted in receiving the notes and getting them discounted, and should therefore have been admiited by the court in the first instance; and that the defendant had therefore no cause of complaint.
    Scire facias, brought against the defendant as trustee of one Belden. The defense was assumed by one Elias Hotchkiss, who claimed to be the owner of the funds held by the defendant Huggins. On the trial to the jury, the plaintiff *offered Huggins as a witness, who testified that, on [ *128 ] the 21st day of June, 1856, the time of the service of the original process upon him, he had funds in his hands belonging to Belden, amounting to $2,931, the net proceed of two notes amounting to $3,060, one dated June 17, and the other June 19,1856, both signed by one Carv and indorsed by Belden and Elias Hotchkiss, and that he obtained the money on these notes for Belden in pursuance of a request contained in a letter received from him at or about the time of his receiving the notes, which letter was the authority under which he acted in the matter. The plaintiff thereupon offered the letter in evidence,, but, upon the objection of the defendant, the court excluded it.
    After the plaintiff had rested his case, the defendant offered Hotchkiss as a witness, who testified that, at the time he indorsed the notes, he placed them in the hands of Belden as his agent, to negotiate and procure funds to pay other notes, then about to fall due in New York, which had been indorsed by Hotchkiss for the accommodation of Belden, and that Belden procured the notes to be negotiated through Huggins as such agent. The defendant also offered other evidence tending to prove that Belden was the agent of Hotchkiss in the transaction. After the defendant had rested his case, the plaintiff in reply, again offered in evidence the letter of Belden to Huggins, and claimed that it had now become admissible as the declaration of the agent of Hotchkiss while engaged in the business of his agency, as well as also being a part of the transaction, and as evidence to show its real character. The defendant still objected to the admission of this letter, but the court then admitted it for the purpose claimed by the plaintiff. The letter was as follows:—“ New York, June 18, 1856. Dear Sir:—It will be necessary to put through about $3,000 worth of paper this week. If the paper has not been handed you by the time you receive this, it will he shortly. As it is exceedingly desirable to put it through by Frida}-, I write this that you may *be [ *124 ] making inquiries and getting the funds ready. Can circulate, if desired, as heretofore.
    Yours truly,
    E. P. Belden.
    P. S. Don’t fail to give it immediate attention. If there is any chance of failure telegraph D. J. Field, 24 Beekman st., N. Y., on receipt of this.” After the letter had been received and read to the jury, it was discovered that it was dated the day before Hotchkiss testified that he indorsed the notes and made Belden his agent; and thereupon the counsel for the defendant, in the argument to the jury, claimed that the letter was written before any agency on the part of Belden existed, and asked the court to charge the jury, that if they found that it was written and forwarded bv Belden to Huggins before the interview between Belden and Hotchkiss in which the latter constituted him his agent, then it was not admissible in evidence and should be excluded from their consideration. But the court omitted so to charge the jury. The jury having returned a verdict for the plaintiff, the defendant moved for a new trial.
    
      R. I. Ingersoll and Beach, in support of the motion.
    
      Blackman and E. I. Sanford, contra.
   Hinman, J.

The question in this case was, whether a sum of money in the defendant’s hands belonged to one Belden, or whether- it was the property of Elias Hotchkiss, who claimed it, and took upon himself the burden of the defense. The money was the proceeds of two notes; procured to be discounted by the defendant, who is a broker. They were payable to the order of Belden, and were indorsed by him and by said Hotchkiss. The defendant, on his examination as a witness, did not state precisely how he obtained the notes ; but he testified that he obtained the money on them for Mr. Belden, in pursuance of a request contained in a letter from him, dated and received at or about the time of receiving the notes, and that the letter was the authority under which he acted in obtaining it; whereupon the plaintiff offered the letter in evidence, which, on ob- [ *125 ] jection, was not ^received in this stage of the case. We think the letter was undoubtedly admissible, because it was the only direct and authentic evidence of the authority of.Huggins ; and, he having acted under it, it was proper for this purpose in showing the character in which he acted. Huggins stated without objection that he acted for Mr. Belden. He could only know this from the letter, and the letter therefore, was not only the best, but the only evidence of his authority. In the course of the trial Mr. Hotchkiss testified that he placed the notes in the hands of Belden, as his agent, to negotiate, and procure funds to pay other notes indorsed by him for the accommodation of Belden; and that Belden procured said notes to be negotiated through Huggins, as the agent of Hotchkiss. There was also other evidence to the same effect; whereupon the plaintiff then claimed that the letter had become admissible as the declaration of the agent of Hotchkiss while engaged in the business of his agency, as well as to show the character of the transaction, and the defendant still objecting, the motion states, that the court then admitted it for the purpose claimed by the plaintiff; and it is now insisted that the effect of admitting it, at this stage of the case, without specifically limiting its effect to the simple purpose for which it was first offered, was to give it the additional weight of coming from the agent of Hotchkiss, and, therefore, of the same effect as an admission by Hotchkiss himself. We however have not been able to see that Mr. Hotchkiss could have been prejudiced by the evidence on this account, even if it be assumed that it was introduced in the manner claimed by him ; and we are well satisfied that there was nothing in the letter itself, or in the manner in which it was introduced and read to the jury, that was at all calculated to mislead them, if they understood its import, as we must presume they did. Both parties admitted that the notes came from Belden into the defendant’s hands. Now all there was in the letter, or in the manner of its admission, that could in any way operate in the plaintiff’s favor, was of a negative character entirely. It consisted simply in the fact, that, as in the letter he did not profess to be acting for any other person, *the jury might, from this circumstance, infer [ *126 ] that he was acting for himself alone. This, of course, was liable to be disproved, as it was claimed to be by Mr. Hotchkiss, whose evidence went principally to show that Belden was merely his agent. If, then, the letter was admitted on the ground that such an agency did in fact exist between Mr. Hotchkiss and Belden, a fact was assumed which went to exonerate the defendant from liability, and must, of course, have operated in his favor if it had any operation, and is not therefore a fact of which he or Mr. Hotchkiss ought to complain. If the plaintiff had been claiming that Belden was acting as an agent, no doubt it would have been necessary for him to establish the" agency before he was entitled to any admissions of the agent. But as he denied the agency, and only offered the letter for the purpose of showing that in the transaction he did not profess to be an agent, we do not see how he could be benefitted by the assumption of the truth of the main fact which he was disputing. Nor can Hotchkiss complain that the letter was admitted on the ground of Belden’s agency for him, for that was precisely what he claimed the fact to be. His only ground of complaint, therefore, must be confined to the introduction of the letter at all. If it was improper evidence, no doubt he would have reason to complain of it; but as we think it was proper evidence, we do not see that there can have been any error which could have operated to his prejudice. We do not think, however, that the motion states that the letter was admitted for the purpose of proving the agency of Belden for Hotchkiss. It is true the motion states that the letter was admitted for the purpose claimed by the plaintiff. But the whole case shows that the plaintiff had no purpose of establishing any such agency. His purpose was all the other way. As we have seen, he was all along denying the agency. The purpose for which he offered the letter was to show in what capacity and in whose agency Huggins procured the notes to be discounted. And the only difficulty in the case arises from the fact that the' letter was not received in the first instance, when first offered, but came in after counsel had addressed [ *127 ] the court, on the subject of ^declarations by an agent while engaged in the business of his agency.

As the ruling in respect to this letter is the only ground for a new trial now insisted upon, we advise the superior court that it ought not to be granted.

■ In this opinion the other judges concurred.

New trial not advised. ■  