The opinion of the Court was drawn up by
Tenney J.The deposition of George Clark being admissible and uncontradicted, proves, that the defendant gave his note to the plaintiff, in March or April, 1836, for her interest in another note given by certain persons for real estate, she making a discount of about thirty dollars in the exchange; that the defendant afterwards informed the deponent that the makers of the note, which he purchased of the plaintiff, had failed, but that he had received security for their note. The testimony of Judge Groton shows, that after the service of the writ in this action, he, as the agent of the plaintiff, notified the defendant to produce at the trial his note to *133the plaintiff, which the defendant admitted he had, but said he should not produce it. It appears by two papers introduced in the case, signed by the defendant on May 10, 1843, that he held a note running to himself signed by David Page, Peter Page and Henry Tucker, taken for the note purchased of the plaintiff, on which was a balance due the plaintiff of about $234, which he promised to pay to her when collected. It ma.y be justly inferred from these facts, that the note in suit was taken and retained by the defendant upon the delivery of the papers of the tenth of May, 1843, without full payment thereof in money. The deposition of Francis J. Clark is offered to show that such was really the faet, and the manner in which the exchange took place; that the exchange was without her authority, knowledge or consent; and that she had never ratified the transaction. This deposition shows, that he was employed by the plaintiff to carry the note, which is described therein, to the defendant, and receive thereon a certain sum, and return the same to her, and for this purpose only; but instead of confining himself to the duty intrusted to him, he gave up the note to the defendant, and received the papers dated the 10th of May, 1843; which papers and the money he carried to the plaintiff; that she took the money and was displeased with the papers, saying she was cheated out of the money.
The deposition of Francis J. Clark was taken subsequent to the service of the writ in this action, a notice having been served upon the defendant, the same day the writ was served, that the deposition would be taken at the time and place therein mentioned. When the deposition was taken, the defendant was present, and proposed questions in cross-examination. A default was entered at the trial, subject to the opinion of the Court upon questions of law, which might be presented.
It is insisted that the action cannot be maintained upon the evidence, which is legally admissible, and the following propositions are made by the defendant’s counsel. ] st, That the secondary evidence of the contents of the note declared on, was improperly allowed. 2d, That the deposition of Francis *134J. Clark, was not legally taken, as it does not appear, that an action was pending, when the notice of caption was given. 3d, That Francis J. Clark is incompetent as a witness. 4th, That if the deposition is legally admissible, a ratification of his doings by the plaintiff is shown thereby. 5th, That before the commencement of the action, the plaintiff should have returned to the defendant, the money received by Francis J. Clark and the papers signed by the defendant and dated May 10, 1843.
1. The 35th rule of this Court requires, that when written evidence is in the hands of the adverse party, no evidence of its contents can be admitted, unless previous notice to produce it on trial shall have been given to such adverse party or his attorney. Notice was given to the defendant previous to the trial to produce the note, which he had, and which was not produced; secondary evidence was not excluded by the rule, and by implication was admissible.
2. Rev. St. c. 133, § 10, provides, that in taking depositions, the justice of the peace or notary may give verbal notice to the adverse party, and that shall be deemed sufficient. The justice who took the deposition of F. J. Clark certifies, that the defendant was duly notified and was present; the deposition itself shows that the defendant himself was present and took part in the examination. It cannot with propriety be denied, that the defendant was legally notified.
3. Was Francis J. Clark a competent witness without a release ? The question of competency is raised upon disclosures in his own testimony, which shows that he was the agent of the plaintiff for a special purpose. It has always been deemed an exception to the general rule of evidence, that an agent may prove his own authority, if it be by parol. Greenl. Ev. <§> 416. It follows, that the nature and extent of the agency may be proved in the same manner. There are cases in which the agent is incompetent as a witness for his principal; as in an action, in which the principal is defendant, and the question is whether the agent has in the execution of his agency, been guilty of some tortious act or carelessness to the *135injury of the other party, and in respect to which he would be answerable over to his principal; if the latter should fail, the record could be admitted to show the amount of damage though not necessarily the liability. Ib. § 394. And in cases, when a verdict in an action in which the principal is plaintiff, would place the agent in a state of security for his own acts, or neglects, he is precluded from testifying for his principal. Ib. 396. When, however, he is equally liable to either party, and is equally indifferent in point of interest, whichever way the verdict may be, he is clearly a competent witness. Ilderton v. Atkinson, 7 T. R. 480 ; Lawber v. Shaw, 5 Mason, 241; 1 Phil. Ev. 100; Bayley & al. v. Ogden, 3 Johns. R. 399. In. the case last cited, in reference to the competency of the agent, who was allowed to testify, the Court say, “ If he exceeded his powers, he stood indifferent between the parties, as he would at all events be liable to the losing party, whichsoever it might be, for the injury done by the excess; and if he did not exceed his power, he was liable to neither. Fancourt v. Bull, 1 Bing. N. C. 681.
In the case at bar, there is no question made whether the witness was guilty of any wrong, or negligence in the performance of the duties of the agency, but whether he had power to make the exchange of papers with the defendant. It was a question, whether he exceeded his agency or not; and if he did, he would be liable to the losing party for the damages done thereby.
4. Is there evidence, that the plaintiff ratified the acts of the agent, so far as they exceeded his power ? The money, being received by her direction, was taken by her, but she was displeased with the papers and said she had been cheated. This could not be an acquiescence in his doings.
5. The papers taken by the witness in exchange for the note in suit, were unauthorized by her, and if left with her, were not received as valid and obligatory; it would be unreasonable, that she should be required to be at trouble or expense to return them. The money received was less than her due, and it would be useless for her to return it, for the *136purpose of recovering judgment immediately afterwards for the same.
The default must stands