
    BRADFORD vs. BARCLAY and WIFE.
    [ACTION ON PROMISSORY NOTE, BY PAYEES AGAINST MAKER.]
    1. IAmiiation of action for money had mid reoeived. — A demand for money collected by plaintiff, on a judgment in favor of himself and defendant’s intestate jointly, is not an open account within tlio statute of limitations of 1816 (Clay’s Digest, 328, § 88).
    2. Proof of agency. — The acts of an assumed agent, unaccompanied by evidence tending to show the principal’s knowledge of, or assent to them, are not competent evidence to prove the agency; but, where there is any evidence tending to show such knowledge or assent on the part of the principal, the acts of the agent are admissible, in connection with such evidence of knowledge or assent; and if the acts of the agent are of such a nature, or so continuous in their character, as to furnish in themselves 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 act without authority, the acts themselves are competent evidence to prove the agency.
    3. Impeaching wilmss.-A. witness, who has been orally examined, cannot bo impeached by proof of contradictory statements made by him in a deposition previously taken in the cause, without first laying the proper predicate by questions as to such pn-evious statements.
    Appeal from the Circuit Court of Coosa.
    Tried before tbe Hon. PosteR King.
    This action was brought by Hugh G. Barclay and Margaret A. Barclay, his wife, against Joseph H. Bradford; was founded on the defendant’s promissory note for $326 68, dated August 18, 1842, and payable to the plaintiffs, as the administrator and administratrix of the estate of George P. Brown, deceased; and was commenced on the 7th September, 1852. The defendant pleaded, in short by consent, the general issue, payment, set-off, and the statute of limitations of six years; to which the plaintiffs filed a general replication, also in short by consent. On the trial, as the bill of exceptions shows, for the purpose of avoiding the defense of the statute of limitations, the plaintiffs introduced one Henderson as a witness, who testified to a conversation between H. G. Barclay and the defendant, in May, 1852, in which the defendant promised that, on final settlement of certain matters of account between them growing out of their joint interest in some Creek lands, “he would <pay or settle the note” sued on. On cross examination of this witness, whose deposition had formerly been taken in the cause, “ said deposition was presented to him, and a paragraph of the same was pointed out to him, in these words: ‘Barclay mentioned a note which was due to the estate of Geo. P. Brown, deceased, and,Bradford said that the note should also be adjusted on the final settlement ’. The witness was then asked, if he did not swear to the truth of the statement contained in said deposition; to which he answered, that the word adjusted was used by the commissioner in writing down bis testimony; but be admitted, tbat tbe deposition was read over to bim before be swore to it; and, on further examination, be said, tbat be could not now swear tbat be did not use tbe word adjusted wben be gave bis deposition, — tbat be considered tbe words adjusted and settled as synonymous, but tbat be was satisfied Bradford used tbe word settled, and not tbe word adjusted.” Tbe defendant afterwards offered in evidence tbe deposition of said Henderson, “ for tbe purpose of showing tbat said witness swore differently on said examination from tbe testimony given by bim on tbis trial; but tbe court refused to allow said deposition to be read; to wbicb ruling of tbe court tbe defendant excepted.”
    Tbe defendant also reserved several exceptions to tbe rulings of tbe court on tbe admissibility of evidence, wbicb was offered by bim, for tbe purpose of showing tbat Thomas Chilton and F. W. Bowdon were tbe agents and attorneys of tbe plaintiffs, and, as such agents, transacted for them business relating to tbe estate of said Geo. B. Brown; and tbat tbe note here sued on was given by bim on a partial settlement with said Bowdon, as such agent, of tbe matters of account existing between bim and tbe estate of Brown, and was not intended to be final; but tbe opinion of tbis court renders it unnecessary to state these several objections in full.
    The defendant introduced evidence, under tbe plea of set-off, showing tbat H. G. Barclay bad collected a judgment against one Sawyer, in wbicb said Brown and tbe defendant were equally interested. Tbe court charged tbe jury, tbat if Barclay received tbis money more than three years before the commencement of tbis action, tbe defendant’s claim on account of it would be barred by tbe statute of limitations; to wbicb charge tbe defendant excepted.
    Tbe several rulings of tbe court to wbicb exceptions were reserved are now assigned as error.
    MARTIN, Baldwin & Sayre, for appellant.
    Bykd_& MORGAN, contra.
    
   R. W. WALKER, J.

There was evidence tending to show, that the defendant and Brown (the plaintiffs’ intestate) were equally interested in the judgment in favor of Patterson v. Sawyer, and that the money on this judgment had been collected by the plaintiff, H. G. Barclay. The defendant’s claim on account of the money thus received was relied on as a set-off in the suit; and the court charged the jury that, if the money was received by Barclay more than three years before the commencement of this suit, defendant’s claim on account of it would be barred by the statute of limitations. In this the court erred. The claim of the defendant, on account of Barclay’s reception of this money, was obviously not an open account, and, therefore, not governed by the statute of limitations of three years. — Clay’s Digest, 326, § 78, 328, § 88; Mims v. Sturtevant, 18 Ala. 359 ; Caruthers & Kinkle v. Mardis. 4 Ala. 599 ; Shepherd v. Wilkins, 1 Ala. 62 ; Maury v. Mason, 8 Porter, 230 ; Angell on Lim. § 69, note 4. The bill of exceptions does not purport to set out all the evidence; and the question, whether the defendant’s claim for this money was a legal set-off to the demand sued on, is not before us.

Most of the other exceptions present questions as to the competency of evidence upon the question of agency. In questions of this character, it is sometimes difficult to arrive at a very satisfactory conclusion, and the legality or illegality of the evidence often depends upon slight circumstances, which are not apt to be offered in precisely the same form or connection on different trials of the same ease. For this reason, we do not consider it necessary, at this time, to go into a particular examination of the exceptions which raise the questions here alluded to. It may be well, however, to state the general principles by which the competency of such evidence is to be determined. The mere acts of the assumed agent, unaccompanied by evidence tending to show the principal’s knowledge of, or assent thereto, are not competent evidence to be submitted to the jury upon the question of agency. But, where there is any evidence tending to show the assent of the principal to the acts of the agent, these acts, in connebtion with such evidence of the principal’s assent, should be allowed to go to tbe jury; and if tbe acts of tbe alleged agent are of sucb a nature, or so continuous in tbeir character, as to furnish in themselves any reasonable ground of inference that tbe principal knew of them, and would not have permitted tbe assumed agent thus to act in tbe absence of authority for so doing, tbe acts_, themselves are at least competent evidence to be submitted to tbe jury. — Gimon v. Terrell, at this term; 2 Phill. Ev. (C. & H.’s notes, ed. 1843,) pp. 188-9; Scott v. Crane, 1 Conn. 255 ; Moore v. Patterson, 28 Penns. St. R. 505 (512-13) ; Forsyth v. Day, 41 Maine, 382 ; Dow v. Perrin, 2 Smith, (N. Y.) 325 ; Kidd v. Cromwell, 17 Ala. 648 (652) ; Scarborough v. Reynolds, 12 Ala. 259 ; McDonald v. Br. Bk. Montgomery, 20 Ala. 318 (317) ; McDougald v. Dawson, 30 Ala. 553 ; Krebs v. O'Grady, 23 Ala. 726; Kent v. Tyson, 20 N. H. 121 ; Cobb v. Lunt, 4 Greenl. 503 ; McClung v. Spotswood, 19 Ala. 165.

Note by Reporter. — Tbe foregoing opinion was delivered at tbe June term, 1861.

Tbe court did not err in refusing to allow tbe former deposition of tbe witness Henderson to be read for tbe purpose of impeaching him. A witness, who has been orally examined, cannot be impeached by proof of contradictory statements made by him in a deposition previously taken in tbe same case, unless a foundation for doing so is first laid, by inquiring of tbe witness as to sucb previous statements. — Hughes v. Wilkinson, 35 Ala. 470-1 ; Powell v. State, 19 Ala. 577 ; Ures v. Charlton, 12 Gratt. 484; Conrad v. Griffey, 16 Howard, 38. This does not appear to have been done in this case.

For tbe error we have pointed out,(tbe judgment must be reversed, and tbe cause remanded.

A. J. Waleer, O. J., not sitting.  