The first ground of error assigned in this case is that, when the plaintiff filed his amended declaration he should have given the defendant a rule to plead, instead of taking a conditional judgment against it as for want of appearance. It appears from the order entered at rules that “the defendant being summoned and not appearing,” a conditional judgment was taken against it according to the statute, Code p. 605, § 44.
*328The next point made is that no plea having been filed to the amended declaration, nor any issue raised under it, it was error to swear the jury to try the issue joined, when there was no such issue nor any issue to be tried by a jury. It appears from the record that an office judgment was had at rules and a writ of inquiry awarded to assess the plaintiff’s damages, and without any plea being entered a jury was sworn to try the issue joined.
It is well settled that it is error to swear a jury to try the issue joined when there is no issue. Baltimore and Ohio R. R. Co. vs. Gettle, 3 W. Va. p. 376; McMillion vs. Dobbins, 9 Leigh, 422. The next assignment is that the court erred in admitting the declarations of Blackford as evidence in the case.
The plaintiff gave evidence to the jury tending to show that Blackford, as an employe of the defendant, had been attempting to hunt up the trunk belonging to the plaintiff and alleged to have been lost bjr the defendant on its road, and then offered to prove that some two or three weeks after-wards the said Blackford (who was since deceased), informed the witness, said Blackford being still an employe of defendant, that he had discovered what had become of said trunk ; that the same had been put off of the train at Clarksburg, a point between Parkersburg and Grafton, and the contents lost, &c. Defendant objected, but the evidence ivas allowed to go to the jury.
The appellant insists that the statements and declarations of Blackford, treating him as an agent of the railroad company, were not made under such circumstances as to make them competent evidence. Where the acts of the agent will bind the principal, there, his representations, declarations and admissions, respecting the subject matter will also bind him, if made at the same time and constituting part of the res gesta. They are of the nature of original evidence, and not hearsay; the representation or statement of the agent in such cases, being the ultimate fact to be proved, and not an admission of some other fact. 1 Greenleaf on Ev., § 113 ; Story on Agency, § 134; Thallhimer vs. Brinckerhoff, 4 Wendell, 394; in the case of Fairlie vs. Hastings, 10 Ves. Jr., 123, Sir William Grant uses the following language: An agent may, within the scope of his authority, bind his principal, *329by bis agreement, and in many cases by bis acts; what the agent has said may be what constitutes the agreement of the principal; or the representations or statements made may be the foundation of, or the inducement to, the agreement* Therefore if writing is not necessary by law, evidence must be admitted to prove the agent did make that statement or representation. So with regard to acts done, the words with which those acts are accompanied, frequently tend to determine their quality. The party therefore, to be bound by the act, must be affected by the words. But except in one or the other of those ways I do not know how. What is said by an agent can be evidence against his principal. The mere assertion of a fact can not amount to proof of it; though it may have some relation to the business in which the person making that assertion was employed as agent.” The same principle is found in the case of Hanaway vs. Stewart, 6 Watt’s Report, 487.
There is no effort in this case to ñx a liability upon the defendant by reason of any act or agreement of the supposed agent, Blackford, but a mere attempt to prove by his declaration a fact with which he was not in any way connected and of which he does not even appear to have had any personal knowledge. The evidence was therefore improperly allowed to go to the jury.
The judgment complained of will have to be reversed, with costs to the appellant, and the cause remanded.
The other judges concurred.Judgment reversed.