
    Shelhamer and another against Thomas.
    Monday, June, 18.
    Tin- acts of an agent, within the scope of his authority, and hU duelapresentations, ployed king an augreementtor in acting within the scope of his author!on pal. ■
    semati¿n3re’ made by an agent, in a matter in which he is not authorised to act as agent, and to a person with whom his principal has no concern, are not evidence against the principal.
    ERROR to the Court of Common Pleas of Columbia county,
    
      William Thomas■ the plaintiff in this ejectment, claimed an aPP^cat*on l^e name of Robert Glen, dated 3d of April, 1769, No. 4., The defendants John Shelhamer and Jercmiall Culp, claimed under an ápplication, inthe name of John Huffnagle, dated 3d of April, 1769, No. 41. Surveys , , ’ ,. * adjoining each other were made on these applications .Glen’s was the property of William West, and Huffna-' gle’s was the property of Edward, and Joseph Shippen. A patent issued to William West, on the 17th of January, 1795, and to Edward and Joseph Shippen, on the 14th February, 1770. West, having discovered as he supposed, some errors in his survey and'patent, (the courses and distances not agreeing with the lines and boundaries marked on the ground,) obtained on the 5th July, 1791, an. order from the board of property for a resurvey, in order to correct the errors in the original survey and patent. In pursuance of this order, a resurvey was made and returned, and anew patent issued to, West, on the 16th of April, 1792. This resurvey and patent included upwards of sixty acres of Shippen’s land, which was the subject , of the present action. These lands were situatéd on Briar creeks on the waters of which the Ship-pens had also other lands. The plaintiff having given evidence, tending to shew that a' certain Evan Owen. was the agent of Messrs. Shippen, for their lands on Briar creek, offered to prove by the oath of Nathan' Beach,, “that a short time prior to the resurvey of West’s land, the said Evan O.wen advised Josiah Thomas, (the father of the. plaintiff,^ who was about to purchase from West, not to purchase immediately, as there was a dispute between West and the Shippens about the boundaries, which would be settled in a short time : that the said Owen attended on the resurvey, as agent for the Shippens, soon after which he informed the'said Thomas that he might purchase in safety, theTines being sec-tied, of which he had informed his principals, Messrs. Ship-pen, who were satisfied, and that in consequence of this information, the said Thomas pürchased from West, n".d paid his money.” To this evidence the defendants objected, but was admitted by the Court, and.an exception was taken to their opinion.
    There were also certain questions proposed to the Court below, by the defendants’ counsel, which were answered by specific opinions on each, in connection with the general charge, previously given by the Court. The. charge and answers were objécted to, as not being full answers to the questions proposed. These also were now assigned for errors, but as the Court gave no opinion upon them, it is unnecessary to detail the exceptions or the argument upon them.
    • Greenough and Fisher, for the plaintiffs in error,
    contended, that the declarations of Owen were not proper evidence to go to the jury. He was not Joseph Shipper?s agent; and if he had been, he had no power to bind his, principal, as to the admission of boundaries to persons not intending to purchase Joseph Shippers lands. All the evidence given was that Owen was the agent respecting the Briar creek lands; which shewed no authority to bind the Messrs. Shippen, as to the settlement of boundaries, or as to any thing beyond the care of the lands. The rule is well settled, that the declarations of .an agent are exceptions to the general rule, requiring evidence to be-given on oath, and the exceptions are confined to such statements as are made by him, either at the time of his making the agreement, about which he is employed, or in acting within the scope of his authority. 1 Phill.'Ev. 83. Besides, the evidence of agency cannot be given by the agent himself: Nicholson’s Lessee v. Miff in, 2 Dali, 246. Meredith’s Lessee v. Mans, 1 Teates, 200.. Nor can it consist of the declarations of thé agent, Plumstead’s lessee v. Rudibach, 1 Teates, 502.
    
      Marr and Hepburn, contra.
    The plaintiff proved by another witness, that Owen was said by Joseph Shippen, to be agent of all his Briar creek land. We had a right to give evidence of the acts and declarations of Owen, which were binding on his principal. That a principal is bound by the acts of his agent, there is no doubt. How far a man is agent of another, is matter of fact, and when the jury have ascertained the fact, the conclusion follows of course, Mac lay’s Lessee v. Work, 5 Binn. 156. An agent has power to settle the boundaries of lands, though not authorised to make a conveyance. In Meade v. McDowell, 5 Binn. 195, it is decided, that if one man confides to another the power of making a contract, he confides to him the power of furnishing evidence of the contract; and if the contract, be by parol, subsequent declarations of the party are evidence. These declarations were also evidence to contradict Owen's oath that he was not agent : he was the defendant’s witness.
   The opinion of the Court was delivered by

Tilghman, C. J.,

after stating the facts.

What was the extent of Evan Owen’s power, as agent of the Ship pens, did not appear. He was examined as a witness, and deniéd. being an agent as to the lands in dispute, although he said- he was agent for all their other lands in Briar creek'. It was proved however,, by another witness, that Edward Shippen informed him, that Owen was agent for all his lands on Briar creek. There was no evidence of any written power, nor did the evidence go further than to shew, that Owen. was called in general, Shippen's agent. Supposing him then to have been the agent, and even to have had power to sell the land, (which he had not, because he had no authority in..writing,) his acts, .and his agreements, within the scope of his authority, and his declarations, and representations made in the course of the business, would have been binding on his principal. But these declarations and representations would not "in strict propriety," have been considered as evidence of particular facts, but rather as part of the contract. TÍie general rule', that facts are to be proved'on oath, extends to agents, as well as to other persons; and the exception is confined to acts, statements, or declarations of an agent, while he is employed in making an agreement, or in acting within the scope of his au■thority. Now it is very clear, that the declarations of Evan Oxeen, do not fall within this exception ; for he was making no agreement with Josiah Thomas, who never had it in com templation to purchase the land of Shippen, He was transacting no business of Shippen's, but giving friendly advice and information "to a. person, with- whom Shippen had no concern. If Edward Shippen had declared himself satisfied with the lines run on West's resurvey, and Evan Owen heard him say so, why was not this proved on oath.? What puts the impropriety of this evidence in á glaring point of view that Owen was actually examined on oath as a witness, and proved no such thing, and yet his declaration without oath, went to the jury, and perhaps decided the cause. It has. been said, indeed, that the evidence was admissible, in order to destroy the credit of Owen, who had sworn that he was not an agent, as to this tract of land. It might have been proper to give evidence of Owen's confessions of his being agent, in order to . shew the inconsistency between his oath, and his assertions without oath. But his declarations of what he had heard Mr. Shippen say, respecting the boundaries of th¿ land, was quite a different thing, and had nothing to do with his own inconsistency! That part of the evidence therefore, was clearly improper.

There were other errors, not necessary, to be particularly enquired into, as they are principally complaints, that certain. questions’ proposed-to the Court below were .not fully answered. The cause will be tried again, and that Court will have ah opportunity of giving a clear and decisive answer. But it may not be amiss perhaps, to repeat. on the present occasion,' a suggestion which this Court found it necessary to make, at their last sitting.at Lancaster. If the Judges of the Courts of Common Pleas, would make it a rule to give a full and distinct answer to each question proposed, without blending, the answers with their general charge to the jury, it would ■ prevent that uncertainty which sometimes occurs, and would render it impossible to omit an answer to any question. But the most careful Judge may chance to make an omission, when he undertakes to give a charge, which shall contain an answer to all the questions. For want of a precaution of this kind, we find ourselves under the painful necessity of reversing judgments, on ,points quite foreign.t®. the merits of the cause.

In the present case, I am of opinion that the judgment should be reversed, and a new trial ordered.

Judgment reversed, and a venire facias de nova awarded.  