The question first arising in the order of the trial, is, whether the statement of La Large before the tribunal of commerce, was properly received in evidence. I think it was not. It was the plaintiff’s own statement of their case; and could no more be introduced by them, than a bill in chancery by the complainant, after having read the answer. That, I believe, is never allowed. The defendant may, no doubt, introduce a document coming from the plaintiffs, by way of explaining what he has himself said, or put in as an answer; but to me it is a new mode of evidence, for a party to introduce his own declarations in his own cause. If it was intended to show that the facts contained in the statement were impliedly admitted by Kneeland, then the proof failed; for the witness could not swear that Kneeland ever saw La Farge’s statement *459before his own answer was put in. I think, therefore, that paper was improperly admitted.
The plaintiffs were bound to pursue the instructions notwithstanding their advances. (6 Cowen, 128.) But the instructions in this case were not so positive as to prevent the exercise of their discretion in making sale of the cotton. The consignors express a hope and request, that there may be no loss on the invoice. This clearly implies that there may be such loss. They might, with equal ease, if such had been their desire, have said positively that no sale should be made below the invoice price. (3 Cowen, 281.)
The main question in the case is, whether the defendant can be made liable, he having disclosed his principal at the time ? And if that alone is not a sufficient defense, then whether he has so paid over or disposed of the money, as to alter his relation to his principals in respect to it.
The general rule, no doubt, is well settled, that an agent who discloses his principal, and so contracts as to give a *remedy against the principal, is not liable personally, unless it was clearly his intention to assume personal responsibility. But where money has been paid to an agent for his principal, under such circumstances that it may be recovered back from the latter, then it may be recovered from the agent, provided he has not paid it to his principal, nor altered his situation in relation to him; for instance, by giving fresh credit. That point was so decided in Buller v. Harrison, (Cowp. 565.) There was, in that case, no doubt of a right once to recover from the principal; but the agent of the defendant had given credit to his principal, and rendered him his account containing the credit. His situation, however, was not altered innany other respect. Lord Mansfield said the jury were embarrassed with the question, whether this was a payment over. He said, for some purposes, it would be a payment over; and the law was clear that an agent who 'received money, by mistake, and paid it over, was not liable; but the principal. As there was no alteration, however, in the situation of the agent, in relation to his principal, it was held wrong that he should be in any better situation than if the mistake had *460not happened. It was, therefore, the opinion of the court, that the agent should pay back the money. In Cox v. Prentice, (3 M. & S. 348,) Lord Ellenborough says, “I take it to be clear that an agent who receives money for his principal, is liable as a principal, so long as he stands in his original situation; and until there has been a change of circumstances, by his having paid over the money to his principal, or done something equivalent to it.”
In this case, the defendant has not paid over the money to Braham & Atwood, in any other manner than by passing it to their credit. There was then a large balance in their favor. But Bogert & Kneeland had also an account with Braham alone, who did business upon his own account, as well as in connection with Atwood. Atwood, one of the partners, was in New York. The money was received and credited on the 12th of November, 1818. An account of sales was rendered on the 28th of the same month; """when the credit due to Braham & Atwood was, by their order, transferred to the credit on Braham’s separate account. Had this transfer been made to the account of any person distinct from the firm of Braham & Atwood, it would be considered equivalent to a payment. It closed the concerns of Bogert & Kneeland with Braham & Atwood. Braham, in his individual capacity, had nothing to do with Braham & Atwood. I think, therefore, the judge was correct in charging the jury that this was such an appropriation of the money as excused the defendant from liability.
The ground upon which agents have been held liable, in such cases, is, that there has been no change in the relative situation of the parties. Where there is a mere passing of credit on the books, for instance, the agent still has it in his power to redress himself. It is not, however, in the power of Kneeland, the defendant, to alter the credit to Braham. He cannot retain the money, as he might have done, had no transfer been made. Kneeland virtually paid the money to Atwood, and received the same amount on account against Braham.
I think, therefore, the plaintiffs ought not to recover; and that a new trial should be granted.
*461As the judge erred in receiving testimony, and. as the question of appropriation, upon which the jury erred, is a question of saw, (Cowper, 566,) I think the costs should abide the event. It is not stric~1y a verdict against evidence only.
Eule accordingly.
Sutherland, J., not having heard the argument, gave no opinion.