
    Magill and another against Kauffman.
    In Error.
    
      June.
    
    THIS case came before the Court on several bills of exceptions to the admission of evidence by the Court of Common Pleas of Mifflin county, where it was an ejectment f°r 100 acres of land in Fermanagh township, to which William and Robert Magill, who were also plaintiffs below, title under an application in the name of Andrew dated January 8th, 1768. The defendant claimed under an application in the name of James Purdy and James Patterson, in trust for a certain presbyterian congregation, March 30th, 1767. The Rev. Hugh Magill, deceased, the father of the plaintiffs, under whom they derived their title, Was pastor of the said congregation, and resided on the land in dispute, in a house built by the congregation. The plaintiffs alleged, that the disputed land was included in Calhoun's • j . _ survey, and not included in the survey m trust for the congregation ; that when their father was informed of this, he called the congregation together, told them of Calhoun’s claim, and requested them to purchase the land; that the congregation declined making the purchase, in consequence of which he purchased it for himself, for forty pounds, and obtained a deed of conveyance from Andrew Calhoun, dated May 16th, 1786. On the other hand it was contended, that the disputed land was included in the survey for the congregation, and always claimed as such; and that Hugh Magill had acted fraudulently in obtaining a conveyance from Calhoun and setting up a claim in opposition to them ; because in his old' age, when he was too infirm to perform the duties of a pastor, they permitted him to retain possession of the glebe, including the land in controversy, for his life, and moreover paid him an annuity of thirty dollars a year. Parol evidence was given to prove these facts. The plaintiffs then offered to prove by the oath of William MiAllister, a member and one of the trustees of the congregation, who were incorporated in the year 1807, that the congregation did not claim the land in question, as included in their survey, until long after the purchase made by Hugh Magill. This evidence was rejected by the Court, and an exception taken. The plaintiffs also offered evidence of the confessions of the agents of the1 congregation, made at a time when they were not acting in their official capacity, which was likewise rejected. In the course of the trial, the defendant offered evidence of what had been sworn to by David Nelson, a witness who had been examined on a former trial between the same parties, in which the matter in controversy was the same, and who it was admitted, then resided in the state of Ohio. This evidence was objected to, but the objection was over-ruled, and the Court sealed a bill of exceptions.
    
      A cause is. by"rfttfer> the’reco0§ sanee oxtail but the op”ra7é a”?
    out of a bTtweenthl ssme parties, Imepobftwas ¡n '®ue> be given m evidence,
    and iiedaratíonsoífnSm agents ofa congregation, in their official # ^ capacities, both before and after its incorporation, are evidence against those 'whom they represent. Bat their confessions, made, not in the transaction of the business of their principal, are not evi” dence.
    
      On the return of the writ of error, Watts, for the defendant in error, moved to quash it, because the recognisance of bail was not conformable to law; but The Court, without deciding on the recognisance, refused to quash the writ, because even supposing the recognisance to be void the suit was well removed, although the writ of error would not operate as a supersedeas.
    
    The questions presented by the bills of exceptions were argued by Huston, for the plaintiffs in error, and by Hale and Watts, for the defendant in error.
   The opinion of the Court was delivered by

Tilghman C. J.

On the trial of this ejectment, the Court of Common Pleas admitted evidence of what had been sworn by David Nelson, a witness examined on a former trial between the same parties, wherein the same matters were in issue. At the time of the trial, David Nelson was living in the state of Ohio. The counsel for William, and Robert Magill, the plaintiffs below, objected to the. evidence, and excepted to the opinion of the Court.

I do not find any express decision upon this point. In several treatises upon the law of evidence, and in several adjudged cases, it is said, in general, that evidence shall not be received of what was sworn by a witness at a former trial, unless it be proved that he is dead, or not to be found after diligent search. Peake's Evid. 58, 59. Phill. Evid. 199. Tilley's case, Salk.UBS. Benson v. Olive, 2 Str. 920. Inonecas® indeed, (Green v. Gatewick, Bull. N. P. 243. Phill. Evid. 199,) the evidence was admitted, the witness having been subposnaed and not appearing, and the Court having some reason to suspect, that he was kept away by the influence of the adverse party. To all these general rules there are exceptions, and the question is, whether the circumstances of the witness being out of the state, and consequently out of the jurisdiction of any Court of Pennsylvania, be good ground for an exception. Reasoning from analogy, we may derive light from cases which have been decided by this Court. In Clark v. Sanderson, 3 Binn. 192, we determined, that where the subscribing witness to an instrument of writing is out of the state, his hand-writing may be proved, although the general rule is, that if the witness be living, he must be examined. To preserve consistency of principle, it appears to me, that in the present instance we should consider the residence of the witness in the state of Ohio, the same thing as his death, for the purpose of letting in the evidence of what he swore on the former trial. It is true, that it might perhaps be more advantageous to the adverse party, to have him examined again. But that objection was equally forcible, in Clark v. Sanderson. If the subscribing witness had been examined, he might possibly have disclosed some fact material to the defendant. But the general convenience of admitting the secondary evidence prevailed with the Court. It is to be remembered, that it is in the power of the adverse party, to prevent the secondary evidence, by sending a commission to examine the witness in the state where he resides. And if he will not do this, it will tend to ^ eas*er administration of justice, to admit proof of what the absent witness had sworn, on an occasion, where there was an opportunity of cross-examining him. If in this case, the depositiori of the witness had been taken on the former trial, it might undoubtedly have been read in evidence on this trial, by virtue of the “Act further to regulate proceedings in courts of justice,” passed 28th March, 1814. The act does not indeed extend to the case of a witness who had been examined viva voce; but if the deposition, and the examination in Court, are put upon the same footing, so far as regards the letting in of secondary evidence, the law will certainly be more simple and uniform. I am, therefore, of 'opinion, that the evidence was properly admitted.

There was another exception taken by the plaintiff to the opinion of the Court below, to understand which it will be necessary to state the nature of the titles, both of plaintiff and defendant.

[Here his Honour stated the titles.]

The reasons relied on by the defendant in error, for rejecting the evidence is, that a corporation can do no act but under their corporate seal; and that, before the congregation were incorporated, they could only act as a body, when assembled for purposes of business; and therefore an individual could neither say, or do, any thing to affect their rights. But this argument is by no means satisfactory. The evidence was offered, not for the purpose of proving the acts of an individual, but the acts of the congregation before they were incorporated, and of the corporation, afterwards. Both the congregation and the corporation must necessarily have transacted their business by means of agents. And with respect to the possession of this land, and its boundaries, the acts and declarations of the trustees and agents of the congregation, both before and after their incorporation, Would be powerful evidence. Besides, it does not appear but that William M1-Allis ter, if he had been examined, might have proved the very acts of the congregation, before their incorporation, when assembled on business. Other witnesses had been examined, in order to prove what passed at such meetings; and very properly. It does not appear clearly by the record, what was the precise nature of the facts to be proved by McAllister. The expressions are, that the plaintiffs offered to prove by William McAllister, that the congregation did not claim the land in question, '¿Ac. which may be understood as referring either to the acts of the congregation itself when assembled, or of its trustees or agents. But either would have been evidence. The acts of an agent or trustee, within the bounds of his authority, must affect the principal. I am of opinion, therefore, that the evidence should have been received.

There was other evidence offered by the plaintiffs, not of the acts of the agents of the congregation, or of their declarations while transacting the business of the corporation; but of confessions made by them afterwards. This.evidence was rejected, and I think with good reason. An agent is authorised to act; therefore his acts, explained by his declarations during the time of action, are obligatory on his principal; but he has no authority to make confessions after he has acted, and therefore his principal is not bound by such confessions. Neither would the congregation be affected by the declaration of one of its members as to what had passed at a meeting of the congregation. This declaration would be but hearsay evidence. The facts respecting what passed at the meeting should be proved by the oath of some person who was present, unless they were reduced to writing, and then the writing itself would be the only,admissible evidence. I am of opinion on the whole, that the judgment should be reversed, and a venire facias de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  