The opinion
Rice, J.
— Were the declarations of Hiram Stevens, the cashier, that the note in suit had been paid, competent evidence for the defendant ? To determine this point the relations which existed between Stevens and the bank, the character of the declaration relied upon, and the time and the circumstances under which those declarations were made, must be considered.
The statement or representation of an agent in making an agreement, or in doing any act within the scope of his authority, is evidence against the principal himself and equivalent to his own acknowledgment. 1 Phil. Ev. 99. The rule admitting the declaration of the agent, is founded upon the legal identity of the agent and principal; and *529 therefore they bind only so far as there is authority to make them. Where this authority is derived by implication from, authority to do a certain act, the declaration of the agent, to be admissible, must be part of the res gestee, i G-reenl. Ev. § 114.
The cashier of a bank is its .agent, and as such entrusted with very large powers. He is usually entrusted with the funds of the bank, in cash, notes, bills and other choses in action, to be used from time to time in the ordinary and extraordinary exigencies of the bank. He receives directly, or through -subordinate officers, all moneys and notes of the bank. He delivers up all discounted notes, and other property where payments have been made; and draws checks from time to time for money wherever the bank has deposits. In short, he is considered the executive officer through whom and by whom the whole moneyed operations of the bank, in paying or receiving debts, or discharging or transferring securities are to be conducted. Story on Agen. § 114; Angelí & Ames on Corp. 244.
Again, we are told that the cashier of the bank is, virtuie officii, generally entrusted with the notes, securities and funds of the bank, and is held out to the world by the bank as its general agent in the negotiation, management and disposal of them. Angelí & Ames on Corp. 245.
Such being the scope of the authority of a cashier as general agent of the bank, the authority of Stevens to receive payment of the note in suit, and to discharge the parties thereto, will not be contested. Nor is it denied that declarations made by him at the time of the payment, and explanatory of that act, might,- with propriety be given-in evidence by the defendant. But it is contended, that his declarations, to be admissible, must have been made at the very time of payment, and have constituted a part of that transaction; and that declarations made by him subsequently, though with reference to the same subject matter, to a party interested, while his agency continued, and when he was acting in the business of that ageney, are inadmissible.
*530 The general rule under which the declarations and admissions of agents to affect the X’ights of principals, seems to be universally recognized in courts of justice.
In the application of the rule to particular cases there has not been entire uniformity of practice. In very many instances, by Courts and text writers of high authority, the application of this rule has been restricted to those declarations made by the agent at the very time the act was done, to which they referred.
Thus in the case of Barclay & als. v. Howell's lessees, 6 Pet. S. C. R. 498, it is said that the declarations Of an agent with respect to a thing done within the scope of his- authority, are not evidence to charge his principal, unless they were made at the time the act was done, and formed a ‘p'hft of the transaction.
In Magill v. Kauffman, 4 S. & R. 317, the Court say the agent is authorized to act, therefore Ms acts explained by Ms declarations, during the time of action, are obligatory on his principal j but he has no authority to make confessions after he has acted, and therefore Ms principal is not bound by such confessions.
In Corbin v. Adams, 6 Cush. 93 , in which the declarations of a son, who had made a contract for Ms own services as the agent of Ms father, as to the terms of that contract, were offered in evidence. Mr. Justice Wilde says — the rule of evidence is laid down in the case of Stiles v. Western Railroad, 8 Met. 44 . When an agent is acting within the scope of his auhority, Ms declarations accompanying Ms acts, are admissible, as they may qualify his acts; but Ms declarations as to other matters and transactions are merely hearsay testimony.”
It should be remarked, however, that in the case of Stiles v. the Railroad, cited above, the declarations offered referred'to matters not within the scope of the agent’s authority, and the Court, in their opinion, so declare, and for that reason they were rejected.
The representation, declaration or admission of an agent, *531 does not bind the principal, if it is not made at the very time of the contract; or if it does not concern the subject matter of the contract, but some other matter, in no degree belonging to the res gestee. Story on Ag. § 135.
These eases are cited as illustrating the doctrines with which the rule in relation to the declarations of agents has been applied by courts and elementary writers whose opinions are entitled to great consideration.
But whether too great a degree of strictness has not sometimes been observed in this class of cases may well admit of doubt.
A manifest distinction exists touching the admissions and declarations of special agents with authority to perform certain specified acts, and those of general agents who are entrusted with the supervision and control of a particular •or general business. The former having authority delegated to do a certain specified act, when that act is done, all privity of interest between the principal and agent ceases. They become strangers to each other. In the latter the privity continues in relation to all acts performed by the agent, within the scope of his authority, until the agency, itself, is terminated.
Hence, in the former case, it may with propriety be held, that only such declarations as are made at the time the particular act is done, by the agent, shall be admitted, while in the latter, explanatory declarations, made subsequently to the transaction, but while the agency continued, have been admitted as being within the scope, of the agent’s authority, or as part of the res gestee.
The case of Fairlie v. Hastings, 10 Vesey, 122, is often cited as a leading case, establishing the strict doctrine contended for by the plaintiffs in the case at bar. An examination of that case will, however, show that it is not authority to the extent usually claimed for it. The Master of the Rolls, in that case did state certain general propositions, in xelation to this kind of evidence, broad enough, perhaps, to cover the principles contended for. These statements were, *532 however, mere dicta. The declarations were excluded in that case, because they came from a party who was not in fact proved to be the agent of the defendant. The acts sought to be established by the declarations of the supposed agent, were performed by the defendant himself. And in view of this state of things the learned Judge very justly ■remarks; “ a man cannot admit what another has done, or agreed to do; but he must prove it.”
In the case of Garth v. Howard & al., 8 Bing. 451, which was detinue for certain plate of plaintiff, pawned without his authority to the defendant, a pawn-broker'; the only evidence to show that the plate had ever been in defendant’s possession was, proof of the declarations of his shopman, that it “was a hard case, for his master had advanced all the money on the plate, at five per cent;” Tindall, O. J., in giving the opinion of the Court, said: — “If the transaction out of which this suit arises had been one in the ordinary trade or business of the defendant as a pawnbrok. er, in which trade the shopman was agent or servant to the defendant, a declaration of such agent that his master had received the goods might probably have been evidence against the master, as it might be held within the scope of such agent’s authority to give an answer to such an inquiry made by a person interested in the goods deposited with the pawnbroker. In this case, the rule laid down in Fairlie v. Hastings, 10 Vesey, which may be regarded a leading case, as evidence on this head, directly applies;” showing clearly that this able jurist did not understand the rule to be that the declarations of a general agent were re-, stricted to those made at the time of the transaction, and further, that he did not understand that such á rule was laid down in the case of Fairlie v. Hastings. “But,” continues the Judge, “ the transaction with the defendant, is not a transaction in his business as a pawnbroker.” The evidence was excluded on that ground.
Pratt, C. J., 1st Stra. 521, allowed the declaration of a *533 wife as to what she had agreed to pay for nursing a child as good evidence to charge the husband.
In Hughes, adm’r, v. Stokes, adm’r, 1 Hay. 372 , which was assumpsit for board and lodging; on the part of the defendant, it was offered in evidence that Mrs. Hughes had acknowledged the accounts to have been discharged, or nearly so. This evidence was objected to ; but the Court say “ the wife, in the present case, acted as the agent or servant of the husband, and received his moneys. The business was carried on by her, and her declarations should be admitted to discharge Stokes.”
In Emerson v. Blanding, 1 Esp. 142, Lord Kenyon stated the rule of law to be, that when the wife acts for her husband, in any business by his consent, he thereby adopts her acts and must be bound by any admissions or acknowledgments made by her respecting the business.
In the case of Welsh v. Carter, 1 Wend. 185 , which was assumpsit on a promissory note given for a quantity of barrilla, sold by one Eitch as agent, and represented by him as of a good quality, but which turned out to be worthless; the defendant offered to prove declarations and representations made by Eitch to sundry persons, subsequent to the sale to the defendant, relative to the value and quality of that portion of the article which remained on hand. This testimony was objected to but admitted.
Sunderland, J., in giving the opinion of the Court, said, “ The declarations or representations of Eitch in relation to this same lot of barrilla, to other persons, to whom he offered parcels of it for sale, subsequent to the sale to the defendant, I am inclined to think wore properly admitted. Eitch was the agent for the plaintiff for the purpose of selling the whole lot of barrilla, and his agency continued until that was accomplished, or his power was withdrawn.”
In the case of McCormick v. Barnum, 10 Wend. 104 , one Baker had been employed as a surveyor to lay out the north half of a township into lots. It was proved on the trial that immediately thereafter, Baker, (who was dead at *534 the time of the trial,) said “he and Wood had been to examine the division line near Copely; that they had found it to be as near right as two different surveyors would be likely to get it; that they had found it to be correct, and allotted the north half accordingly; and that they had made a field book and map of the survey, reported their proceedings to an agent of Harrison, and received payment for their services.” Proof of these declarations was objected to, but the evidence was received, and the full Court, Savage, C. J., delivering the opinion, held they were properly received, as being declarations within the scope of his authority as agent.
In Curtis v. Ingraham, 2 Vermont, 287, the declarations of the wife, who was proved to be the agent of the husband, “that she had got rid of the demand (in suit) and she was glad of it; that she had sold it to her son-in-law, Earn-ham, who was carrying on the suit,” were admitted as competent evidence for the defendant, who claimed to have settled the demand with Earnham.
The Court in their opinion say, “ her sayings must not be considered merely as acknowledgments of previously existing facts, but also as declaratory of the actual situation of Farnham, and the confidence that might be placed in him by the defendant.”
The admissions of an agent are binding upon his principal if made within the scope and during the existence of his agency; but after his agency ceases, his admissions or statements are not binding. Levy v. Mitchell, 1 Eng. 138.
In the case of the Bank of Monroe v. Field, 2 Hill, 445 , the declaration of the president of the bank, that a note had been paid, made after an examination of the book, was admitted as proper evidence for the defendant as being part of the res gestos, on the ground, that the president was a principal officer of the bank, and this being within the scope of his authority.
In the case of State Bank v. Wilson & al., 1 Dev. N. C. R. 485, which was an action against the defendants as sure *535 ties on a note, it was proved at the trial, that the cashier, (who had died insolvent,) on being applied to by an agent of the defendants, to learn the situation of the debt, replied, “that the indorsers were discharged, the debt having been paid by himself, and the whole business settled.” The full Court, on advisement, held, that this testimony was properly admitted. There was no entry on the books of the bank showing that the note had been paid.
It will be found difficult, perhaps impracticable, to reconcile all the adjudicated cases, with any general rule, by which this kind of evidence is admitted or excluded.
The distinction between subsequent declarations made by special agents, with powers limited to the performance of particular acts only, and the explanations of general agents, having under their control a general business, made with reference to their own acts within the scope of their authority, and during the continuation of their agency, does not seem at all times to have been kept in view.
The reason for adopting the more extended rule, applicable to general agents, would seem to apply with peculiar force in the case at bar. The plaintiff is a banking corporation, an institution having numerous and important business transactions with the public. The general direction of its affairs is, it is true, under the supervision of a board of directors. But this board has little direct communication with the public. The cashier is the officer with whom the customers of the bank transact a very large proportion of their business. He has the custody of all the notes, bills and other securities belonging to the bank. To him all payments are made, and by him all securities are surrendered, when paid. As those securities are under his exclusive control, their condition must be, necessarily, within his personal knowledge, and his answers to inquiries made by persons interested, while in the discharge of his ordinary official duties, as to the conditions of such securities, are, in my opinion, acts clearly within the scope of his authority. To hold otherwise, would be to exceed the popular theory, *536 that such institutions are destitute of an important vital element possessed by natural persons, and to determine that they are also, practically, without any responsible organ of communication with the world.
It is contended, that the books of the bank, its records of the acts of its directors, are the legitimate and proper evidence of its contracts and proceedings, and that the declarations of its officers can only be given in evidence, if at all, in relation to past transactions, when made in connexion with an examination of the books, thus being made a part of the transaction or res gestee.
The books are the private property of the bank over which its customers have no control; and besides, the records of the proceedings of the directors would not show what notes had, or had not been paid, even if they were accessible. But the question is not what could be shown by the records if they were introduced as evidence, but whether the act of examining them changes the character of the declarations of the agent, in relation to past transactions, performed by the agent. Suppose the cashier in this case had examined the books on which the acts of the directors were recorded, or any memoranda made by himself at the time of the payment of the note, before making his declarations. Such examination would have constituted no part of the res gestee of payment. At most it could only serve to refresh his recollection of a past transaction, and would be wholly useless, if his recollection was distinct without the reference. In one case he would state a fact within his own knowledge, from recollection; in the other he would state the same fact with his recollection refreshed by an examination of the books or memoranda. The principle of evidence would be the same in both cases.
It is undoubtedly true that the bank is under no legal, and possibly no moral obligation to give information to its customers as to the condition of its securites or as to their liability on paper which the bank has discounted. Nor is an individual obliged to give information in relation to his *537 business transactions, past or present. In both cases the giving of such information may be a mere act of curtesy. Yet although a suit at law might not lie against an individual who should be so discourteous as to give false information, still his admissions or declarations would be competent evidence against him in an action where they were pertinent to the issue, and it is not perceived why the same rule should not apply to a bank.
Onerous indeed is the situation of the customers of banks, if they can only obtain responsible information touching their liability upon notes in the custody of cashiers, by calling a meeting of directors, to answer a simple inquiry relating to transactions peculiarly within the knowledge of their cashiers, by a formal, official resolution of the board.
From these considerations, I am of the opinion, that both apon principle and authority, the declarations of the cashier were properly admitted- The degree of credit they were entitled to should be determined by the circumstances under which they were made.
The nest instruction to which objection is taken is so intimately connected with the one which has already been considered, as necessarily to stand or fall with it. I think it was correct. State Bank v. Wilson, 1 Dev. 485 .