Shelby v. Governor ex rel. Newman

On the trial, the plaintiff introduced a witness to prove that Weathers told him, that he had collected the money in controversy. To the admission of which testimony the defendant objected, but the Court were divided on the question and the testimony went to the jury; to which the defendant excepted. The plaintiff had a verdict and judgment, which judgment the defendant seeks to reverse by writ of error. Agreeably to the decision in the case of Hotchkiss v. Lyon and others, May term, 1829 (1), and the cases there cited, the admissions or declarations of a principal are not evidence against a surety, unless such admissions or declarations form a part of the transaction in which the principal, as such, is engaged. If Weathers, while officially acting in relation to the receipt of this money, stated that he-had received it, such statement would form a part of the res gestae, and would be euii^pe to prove the act of receiving; and would therefore be admissible against his sureties. But declarations made by him at any subsequent period, would have no connection with the act, and could not be introduced as evidence of the act, so as to bind his sureties; for it is his acts, and not his admissions or declarations, for which Ms sureties are bound. As the statement of Weathers, that he had collected - this money, is not connected by the testimony, with any act of his relative to this order of sale, or any money collected by him on this order, it was inadmissible as evidence against the defendant in this case.

The judgment is reversed, and the verdict set aside, with costs. Cause remanded, &c.