¶1We are of opinion that the letter to plaintiff below, written by George Bernstein, and admitted in evidence by the court against defendant’s objections, was not admissible as evidence against the defendant, tending to prove the contemplated fraud on her part, charged in the affidavit for the attachment against her goods, but by her denied. There was no evidence of any express authority from her to the writer, or of knowledge concerning it. Its admissibility is predicated upon the fact that George Bernstein was her general agent respecting the cigar business which she was carrying on at the time. Such agency was shown. But it was not shown that the agent was doing any act, or in the performance of any duty, for his principal, within the scope of his authority as such agent, at the time of writing the letter. Hot only that, but it affirmatively appears from the plaintiff’s own showing, that George Bernstein wrote the letter, not as the instrument of the defendant, but on his own behalf, with reference to his own business.
¶2But even suppose that the letter admits of such construction as would amount to a declaration tending to show that the defendant would make the fraudulent disposition of her property, as charged by the affidavit, if suit should be brought upon the notes, such declaration can not be regarded as made by her, and as such admissible against her. Such a declaration, to be admissible, must have been made by an agent, acting within the scope of his authority, and it must have been a part of the res gestee: Ewell’s Evans on Agency, 125, and cases in note 1. In Limblom v. Ramsey, 75 Ills. 250, it is said: “It is the general rule, that 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 timé and constituting a part of the res gestee.” In Hannay v. Stewart, 6 Watts, 489, the court said: “ The statements of an agent generally,, though made of the business of the principal, are not to be taken as equivalent to the admissions of the principal; for then the latter would be bound by them whether true or false, which would render the situation of every principal truly perilous.” Langhorn v. Allnutt, 4 Taunt. 511.
¶3To fraudulently convey away defendant’s property with intent to hinder and delay her creditors, as it was charged in the affidavit that she was about to do, would constitute a misdemeanor, under our Criminal Code. R. S. 1874, p. 370, § 122.
¶4It is not pretended that the agent here had any express authority from defendant to make any such fraudulent disposition of her property, or to make any declaration threatening to do so; and it can not be maintained that any such authority can be implied from the agency. 2 Starkie on Ev. 44.
¶5Suppose it be conceded that George Bernstein was authorized from his agency to defend any suit brought upon the notes in question against defendant, and in writing to the plaintiff of his own motion, he had falsely charged plaintiff with having stolen from defendant certain specified goods belonging to her, and falsely declared that defendant was about to prosecute him for such larceny; in an action for libel by plaintiff against defendant, Would that letter be admissible in evidence against her to prove the libel ? We apprehend not; because it was beyond the scope of his agency to make any such statement and declaration. So it was beyond the scope of his agency to make any declaration that she was about to commit a misdemeanor, if such be the meaning of the letter in question. But in writing this letter he was not acting as the instrument of the defendant, but for himself; and it is a perversion of the truth of the matter to impute the act to her.
¶6The judgment of the court below will be reversed and the cause remanded.
¶7Reversed and remanded.