M Werk Co. v. Martin

*83OPINION

By BARNES, J.

We think the trial, court was in error in admitting this testimony. It must be borne in mind that at the time of the trial the ación had abated as to Mercer and the cause was proceeding as against the Werk Company alone. If Mercer had been the defendant, his testimony* in the Municipal Court might have been presented as a declaration against interest. This rule coiild not be given application against the Werk Company until it was shown that the act of its agent, Mercer, in the instituting of the prosecution was within the scope of his authority. We recognize that a…