
    ROBERTS, &c. vs. BURKS.
    
      From the Washington Circuit Court, the Hon. William L. Kelly sole Judge.
    
    
      Bibb, for appellants; B. Hardin, for appellees.
    Oct. 18.
    The confessions of agents are not evidence against their employers, except where such confessions are part of the res gestæ.
   Opinion of the Court, by

Judge Mills.

THIS is an action of trover and conversion against our defendants. In the court below, on the issue of not guilty, the jury found a verdict against all of the defendants. Two of them appear to be owners of a warehouse, and the other two did business for them as warehouse-keepers or agents. The action is brought for the trover and conversion of whiskey stored by the plaintiffs in the warehouse. The only testimony adduced to charge the owners of the warehouse, was the acknowledgments of the other defendants that the quantity of whiskey was in the warehouse, and that they had taken it out and shipped it aboard of a boat belonging to the owners of the warehouse, and at their order, to make up a deficiency in the load. The verdict being against all, a new trial was moved for, on the ground that the verdict ought not to have been thus found, there being no competent evidence against two.

The principle, that the declarations or confessions of an agent, except they be made at the time, and compose a part of acts done by him for his principal, within the scope of his authority, cannot be given in evidence to charge the principal, is too well settled to need authority to support it. The confessions of the agents in this case do not appear to have been made at the time of doing the acts, nor does it appear that they were executing any authority given them, except by their own declarations. The evidence, therefore, was incompetent, as to the keepers of the warehouse, and insufficient to warrant the verdict against them. Of course, the court erred in refusing to grant anew trial.

Judgment reversed.  