least plausible, if not correct, that the testimony in question is competent as a part of the res gestæ, aside from the question of agency. It is true the parties cannot see each other; but the statements of an interpreter between blind persons could be proven by third parties, without calling the interpreter as a witness; and by telephonic means persons are as much together for all purposes of conversation and actors in what may be occurring as if they were immediately present with each other. We must not be understood however as holding the testimony competent upon the above ground, because there is another reason for so ruling which is conclusive to our minds. Subject to various qualifications the old rule that a party must produce the best evidence within his power to prove a fact should govern. But as business expands by the aid of new inventions wider scope must be given to the rules of evidence. There is no need however of any departure or innovation in this case, because it is a well-settled rule of evidence that the statements of an agent, when acting within the scope of his agency, are competent against his principal. When When one is using the telephone, if he knows that he is talking to the operator, he also knows that he is making him his agent to repeat what he is saying to another party; and in such a case certainly the statements of the operator are competent, being the declarations of the agent made during the progress of the transaction. If he is ignorant whether he is talking to the person with whom he wishes to communicate or with the operator, or even any third party, yet he does it with the expectation and intention on his part that in case he is not talking

with the one for whom the information is intended, that it will be communicated to that person; and he thereby makes the person receiving it his agent to communicate what he may have said. This should certainly be the rule as to an operator, because the person using a telephone knows that there is one at each station whose business it is to so act; and we think that the necessities of a growing busi

ness require this rule, and that it is sanctioned by

the known rules of evidence."

In Goodwin v. Young, 34 Hun, 252, a servant of the plaintiff, a resident of Vermont, took a team of

Richardson v. N. Y. C. R. R., 98 Mass. 85. The present is not quite such a case. The sale of liquor was not a wrongful act, either at common law or by the statute. It might have been an act which the defendant was specially licensed to do by the authorities of the State. The plaintiff urges that a sale of a glass to be drunk on the premises, and of two bottles to be carried away, must have violated some part of the excise law. But under the civil damage act it is of no consequence whether or not the vendor was licensed. We need not there. fore consider the subject of the excise law. The wrongful act which caused the injury to the plainttiff was the act of Connelly, his servant, and was done in Vermont. The plaintiff undoubtedly had a right of action against Connelly for negligence, on which he could have sued in Vermont, and probably here also. But our statute gives a cause of action for the injury, and this, as it is a special statutory provision, must refer to an injury done in this State. It cannot be intended to have an extra-territorial effect. The statute is peculiar, in that it makes an innocent man liable for the wrongful act of another. But we are confident that its effect must be limited to the State. This case is similar to that of Le Forest v. Talman, 117 Mass. 109; S. C., 19 Am. Rep. 400. There the defendant owned a dog in Massachusetts. The dog strayed into New Hampshire and bit plaintiff. The plaintiff claimed to make the defendant liable on a Massachusetts statute, making every owner of a dog liable in double damages to every person injured. But it was held that the action could not be sustained. See cases there cited.

Our statute, as it were, imposes upon certain injuries this quality, viz.: that a person is liable for the inthat quality to an injury caused out of the State." juries who did not cause them. It does not give

See Willis v. Mo. Pac. Ry. Co., 61 Tex. 432; S. C., 48 Am. Rep. 301; Hyde v. Wabash, etc., Ry. Co., 61 Iowa, 441; S. C., 47 Am. Rep. 820; Taylor's Adm'r. v. Penn. Co., 78 Ky. 348; S. C., 39 Am. Rep. 244; Herrick v. Minn. and St. L. Ry. Co., 31 Minn. 11;

S. C., 47 Am. Rep. 771; McCarthy v. Chicago etc., R. Co., 18 Kans. 46; S. C., 47 Am. Rep. 771.

State, and there drank a glass of liquor upon the defendant's premises and purchased whisky from him, He returned to Vermont intoxicated and placed one of the horses in a stable, leaving the door open, whereby the horse took cold and died. Held, that no action would lie here under the Civil Damage Act, there being no corresponding statute in Vermont. The court said: "Several cases cited by counsel are instances where a wrongful act, done in one State, has caused injury to a person there, and that person or his representative has sued to recover damages for such injury in another State. Leonard v. Col. Steam N. Co., 84 N. Y. 48; S. C., 38 Am. Rep. 491; Whitford v. Panama R. Co., 23 N. Y. 465;

NESSES. II.

In case 3 it was said: "We are all of opinion that it cannot be laid down that all public documents, including treaties with foreign powers, and all the correspondence that may precede or accompany them, and all communications to the heads of departments are to be produced and made public whenever a suitor in a court of justice thinks that his case requires such production. It is manifest (we think) that there must be a limit to the duty or the power of compelling the production of papers which are connected with acts of State. As an instance, we

*

executive in the performance of his duties, they may do so in every instance and at all times. We need not waste time in the attempt to prove that this proposition is not allowable; that the governor cannot thus be placed under the guardianship and tutelage of the courts. To the people, under the methods prescribed by law, not to the courts is he answerable for his doings or misdoings. It is his duty from time to time to give to the General Assembly information of the state of the Commonwealth,' but it is not his duty to render such an account to the grand jury of Allegheny, or any other county. * * The president of the United States, the governors of the several States, and their cabinet officers, are not bound to produce papers or disclose information committed to them, in a judicial inquiry, when in their own judgment the disclosure would, on public grounds, be inexpedient. 1 Greenl. on Ev., § 251; 1 Wheat. Law of Ev., § 604. Thus, the question of the expediency or inexpediency of the production of the required evidence is referred, not to the judgment of the court before which the action is trying, but of the officer who has that evidence in his possession. The doctrine that the officer must appear and submit the required information or papers to the court, for its judgment as to whether they are, or are not, proper matters for revelation is successfully met. and settled in the case of Beaton v. Skene, 5 Hurlst. & N. 888, per Pollock, C. B. It was there held that if the production of a State paper would be injurious to the public interest, the public welfare must be preferred to that of the private suitor. The question then arose, how was this to be determined? It must be determined either by the judge or by the responsible crown officer who has the paper. But the judge could come to no conclusion without ascertaining what the document was, or why its publication would be injurious to the public service. Just here however occurred this difficulty, that as judicial inquiry must always be public, the preliminary examination must give the document that very publicity which it might be important to prevent. The conclusion reached was that from necessity, if for no other reason, the question must be left to the judgment of the officer. Influenced by this and other precedents we have cited, as well as by reason and necessity, we are in like manner disposed to conclude that the propriety of withholding the information required by the grand jury must be determined by the governor himself; and the weight of the reasons influencing him in the conclusion at which he has arrived is for himself, and not for the court to consider."

RULE. Communications made for the purpose of detecting or punishing crime are privileged, and neither the name of the informer nor the nature of his communication can a witness who has received such informa tion be compelled to disclose (2), whether the witness be

(2) Contradictory ruling may be found in R. v. Blackman, 1 Esp. 95; R. v. Cundy, 15 M. & W. 175; R. v. Richardson, 8 F. & F. 693; Dickson v. Wilton, 1 id. 419; Blake v. Pilfold, 1 M. & R. 198; Law v.Scott, 5 H. & J.438 (1822). But most of these were at nisi prius, and all of them have been either overruled or dissented from. See Worthington v. Scribner, 109 Mass, 492 (1872).

an officer of the government or the law (a), or a private person (b). ILLUSTRATIONS. (A.)

1. In an action of tort for maliciously representing to the government that the plaintiff was about to defraud the revenue, a witness is asked whether he did not, at a certain time, inform the secretary of the treasury that the plaintiff was about to wrongfully import books into the country, and if so, what statements he made. The witness cannot be compelled to answer this (3).

2. On an indictment for counterfeiting, the officer who apprehended the prisoner is asked the name of the person who gave him the information which led to the prisoner's arrest. The answer is privileged (4).

3. On the trial of an information for a breach of the revenue laws, a witness for the crown was asked on cross-examination: "Did you give the information?" The question is improper (5).

4. B., an officer of the army, makes a report to T., the secretary of war, as to the conduct of H., another officer. H. sues B. for libel. The report made by B. is privileged, and inadmissible (6).

5. A. makes to a prosecuting attorney of a county certain statements, involving B. in a charge of larceny, and for the purpose of his detection. In an action by B. against A. for malicious prosecution, these statements are not admissible against the consent of A. (7)

6. A. is asked as to what took place in his presence at a certain time. At the time in question A. was acting as State counsel, and was in the jury room. The evidence is privileged (8).

In case 1 it was said: "It is the duty of every citizen to communicate to his government any information which he has of the commission of an offense against the laws. To encourage him in performing this duty, without fear of consequences, the law holds such information to be among the secrets of State, and leaves the question how far, and under what circumstances, the names of the informers and the channel of communication shall be suffered to be known, to the absolute discretion of the government, to be exercised according to the views of what the interests of the public require. Courts of justice therefore will not compel or allow the discovery of such information, either by the subordinate officer to whom it is given by the informer himself, or by any other person, without the permission of the government. The evidence is excluded not for the protection of the witness or of

(3) Worthington v. Scribner, 109 Mass. 487 (1872).

(4) United States v.Moses, 4 Wash. C. C. 726 (1827). In R. v. Ackers, 6 Esp.125 (1808), Lord Kenyon said: "The defendant's counsel have no right, nor shall they be permitted to inquire the name of the person who gave the information of the smuggled goods."

(5) Attorney-General v. Briant, 15 M. & W. 170 (1846). (6) Horne v. Bentinck, 2 Brod. & B. 130 (1820).

(7) Oliver v. Pate, 43 Ind. 141 (1873).

(8) Clark v. Field, 12 Vt. 485 (1839); McLellan v. Richardson, 13 Me. 82 (1836).

the party in the particular case, but upon general grounds of public policy, because of the confidential nature of such communications. *** The question before us is not one of the law of slander or libel, but of the law of evidence; not whether the communications of the defendant to the officers of the treasury are so privileged from being considered as slanderous, as to affect the right to maintain an action against the defendant upon or by reason of them, but whether they are privileged in a different sense, so that courts of justice will not compel or permit their disclosure without the assent of the government to whose officers they were addressed. The reasons and authorities already stated conclusively show that the communications in question are privileged in the latter sense, and cannot be disclosed without the permission of the secretary of the treasury. And it is quite clear that the discovery of documents, which are protected from disclosure upon grounds of public policy, cannot be compelled either by bill in equity or interrogatories at law."

In case 2 it was said that while such a disclosure could be of no importance to the defense, it might be highly prejudicial to the public in the administration of justice by deterring persons from making similar disclosures of crimes which they might have discovered.

In case 3 it was said: "On the part of the crown Hardy's case and Watson's case (9) were cited. *** It was contended on the part of the crown that the rule was general, and that it was founded upon public policy; and that if a question tended to disclose the source of information on which executive government had acted, it could not be put. For the defendant it was contended that the right of the subject to discredit a witness by cross-examination was universal; and the object of the question being to disredit the witness, that it was taken out of the rule. Lord Hale's History of the Common Law was referred to, and several cases were cited, but none directly in point. In Hardy's case, John Groves, a witness for the crown, being asked by whom he was sent to attend certain meetings, the question was objected to on the ground that the channels of information could not be inquired into. The attorney-general, afterward Lord Eldon, stated that the Court of Exchequer would not permit the question to be asked. The court ruled that it was not proper to ask the question, and it was not asked. Subsequently, in the same trial (page 811), the point arose again; it was on the cross-examination of a witness of the name of George Lyram; this question was put avowedly to try or sift the credit of the witness, namely, who was the person to whom they communicated certain facts. Lord Chief Justice Eyre held that although in ordinary cases such a question could be put, yet if it involved the disclosure of the channels of communication with the government it could not be put; and he decided that such was the rule, refer(9) See ante.

ring to the question asked of the witness Groves, already mentioned. Lord Chief Baron Macdonald, Mr. Baron Holtham, Mr. Justice Buller and Mr. Justice Grose all gave judgments, and on all hands it was agreed that the informer, in the case of a public prosecution, should not be disclosed. All the judges so decided, and the counsel on both sides admitted that such was the law. In Watson's case the same point arose. Hardy's case was cited, and Lord Ellenborough and Mr. Justice Abbott, afterward Lord Tenterden, ruled accordingly. It has been however contended for the defendant that admitting that a witness cannot be asked who was the informer, the informer being a third person, yet he may be asked whether he himself was the informer, and gave the information; on the part of the crown it was replied that such a question, addressed to each witness in turn, might be the means of discovering the informer; and that if the principle and object of the rule were to prevent the informer from being discovered, the question cannot any more be put directly to the witness, whether he himself was the informer, than whether a third person was. It was alleged, and as far as we can learn or have had any experience, it was correctly alleged, that the practice of this court has been in accordance with this rule. There is no direct authority either way; but the rule clearly established and acted on is this, that in a public prosecution a witness cannot be asked such questions as will disclose the informer if he be a third person. This has been a settled rule for fifty years, and although it may seem hard in a particular case, private mischief must give way to public convenience. This is the ground on which the decision took place in Hardy's case and in Watson's case; and we think the principle of the rule applies to the case where a witness is asked if he himself is the informer, and therefore that the question could not be asked."

In case 4 Dallas, C. J., said: "I will not say that T. would have been compelled to produce the result of this inquiry, but whether if he under a mistake had been disposed so to do, it would not have been the bounden duty of the learned judge before whom the cause was tried, considering that this document was a secret, not the privilege of the party holding it, but of which he was a trustee on behalf of the public, to have interposed, and prevented the admission of such evidence. Now before I examine the few instances alluded to as applying to cases of this description, let us see upon what ground and principle the present case rests. It is agreed that there are a number of cases of a particular description, in which for reasons of state and policy, information is not permitted to be disclosed. To begin with the ordinary cases, and those of a common description in courts of justice. In these courts, for reasons of public policy, persons are not to be asked the names of those from whom they receive information as to the frauds on the revenue. In all the trials for high treason of late