In this case, the plaintiff offered to prove, in order to shew the authority and agency of the defendant, that he received the note against Isaac Hawley, mentioned in the plaintiff's replication, and agreed to indorse the same on the note of Abijah McEwen against William Walker. To the introduction of this testimony the defendant objected, that his agency, at the time of the act and agreement aforesaid, by authority derived from Abijah McEwen, must first be established; but the objection was overruled, and the testimony admitted, on the ground that the acts and declarations of the defendant, before the death of the said Abijah, were sufficient evidence of his authority. On the adduction of the testimony, there was no proof, that the said Abijah authoriz*548ed the defendant to receive the said note, or make the said promise. In the charge to the jury, the judge instructed them, that the aforesaid acts and declarations of the said Charles, made and done in the life time of the said Abijah, and before the defendant was his executor, conduced to prove him an authorized agent; and that the jury, on this foundation, had a right to infer his authority.
The facts above stated, present to the court, for determination the general question, whether the reception of a note against Isaac Hawley, by Charles McEwen, from Walker, the debtor of Abijah McEwen, with an agreement to indorse the avails on Walker's note, was admissible evidence. The testimony, in my opinion, was clearly irrelevant. To render it available, the proof must establish the fact, that Charles McEwen at least assumed to receive the above-mentioned note, as the agent of his father. If the transaction was merely this, that the said Charles acted, and was understood by Walker to act, in his personal capacity only, and without authority from his father, it cannot, even with plausibility, be urged, that his act and agreement amounted to any thing more than a personal engagement, for the infraction of which, he alone can be personally responsible. That this was the nature and extent of the preceding transaction, is too manifest to admit of controversy. There is no pretence, that he held himself out to Walker as the agent of his father; that he had the possession of Walker's note; that he was ever requested to collect it; or, finally, that he was his father's general or special agent. The naked act and engagement of the defendant, without the exhibition or actual pretence of any authority, imply no proof of agency; nor do they constitute premises, from which any such inference can be deduced. The entire transaction between the defendant and Walker consisted in the reception of a note, with his individual contract to pay the avails to the creditor; and in this transaction he was the agent of Walker, and not the agent of his father. The obligation was merely personal on Charles McEwen; and for aught that has been made to appear, the money was collected, and now remains in his hands.
As to the competency of the evidence, were it relevant, I should consider it free from objection, if it affected the rights and interests of Charles McEwen only. On general principles, the declarations and acts of the party on record, whether he had, or had not, an interest in the subject, at the time *549of making or performing them, are admissible in evidence against him. There is hardly any rule so universal as to be free from exception; for a case without the reason of the rule, cannot be considered as embraced within the provision. The declarations or acts of a person, who has become a party to the record, ought to affect him personally; and upon the same principle, it is reasonable, that they should act upon those who derive their property through him, or who have confided their interests to his care. The latter comprises the case of a trustee, whose acts and declarations are operative against the cestui que trust. But Charles McEwen is not the trustee of the heirs or creditors of his deceased father; nor is the estate derived through him to the heirs: he is merely the agent of the law. To them he is as much a stranger as a creditor would be, who had taken out administration on the estate of the deceased; and upon any principle, which would authorize the proof of an act or contract of his, anterior to the acceptance of the trust of executor, to affect the estate committed to his care, a similar act or contract of a creditor, would be equally admissible, and with equal effect, if he should become an administrator.
It has been contended, that a judgment against the defendant, would act on him personally, and that the payment of it would not constitute a claim against the estate of his deceased father. This proposition is manifestly unfounded, and admits of no support. The judgment would be prima facie evidence, at least, to sustain his demand; nor would the effect of it be diminished, by the consideration, that it was obtained on the proof of his act and declaration anterior to his father's death. In absence of proof, this act and declaration must be considered as founded in truth, and not as evincive of fraud or misconduct; nor am I aware of any principle, by force of which the executor can be made to suffer for the performance of a lawful and justifiable act.
I am not insensible, that the rule relative to the admissions of a party on the record, is laid down in very comprehensive terms; but the exception already mentioned the interests of justice imperiously demand. The hardship on the heirs of a deceased person, deprived of their property, by the acts or declarations of a mere stranger, is both obvious and forcible; and the adoption of a rule, attended with this result, would be inequitable and inconvenient. I am satisfied, that the exception before-mentioned, is maintainable *550on solid ground, as not being within the reason of the general rule which I have admitted; and that the reception of the testimony and charge to the jury, in this case, were both incorrect.
Peters, Brainard and Bristol, Js. were of the same opinion. Chapman, J. dissented.New trial to be granted.