#### ALEXANDER MAY and others, Ex’ors of PETER MAY vs. ALEXANDER LITTLE & al. Ad’mrs of WILLIAM B. MAY.

December 1842.

It is not competent for a plaintiff to give in evidence, declarations made by a wife, in the lifetime of her husband, shewing his liability to a debt, she not being shewn to be the agent of her husband, although she is now a defendant on the record, as his administratrix.

Appeal from the Superior Court of Law of Anson county, at Fall Term, 1842, his Honor Judge Dick presiding. This was an action of debt on a bond, executed by William B. May, the defendant’s intestate, to Peter May, the plaintiffs’ testator. The execution qf the bond was duly proven.— The defendants relied upon the plea Of payment, and introduced a variety of evidence to prove that the bond had been fully paid off and discharged in the lifetime of their intestate. The plaintiffs also introduced evidence to prove that the bond had not been discharged. Among other testimony, the plaintiffs introduced a witness, who stated, that in the Fall of 1836, a month or two before the death of William B. May, Peter May, the plaintiffs’ testator, handed him the bond now in suit, and requested him to call on William B, May for payment; that, at the house, he was informed by the said William’s wile, (who is now a defendant as adminis-tratrix of the said William,) that her husband was at home, but indisposed, and not in a situation to do business. The witness then stated his business fo Mrs. May, the present defendant, who replied to him that she had a little money, and could pay him one hundred dollars. Mrs. May further remarked, that she had wished her husband to sell a negro and pay the debt. This evidence was objected to by the defendants as inadmissible, but was admitted by the court, upon the ground that it was a declaration of one of the defendants of record in this suit. The jury rendered a verdict for the *28plaintiffs; and a new trial having been moved for and refused. and judgment entered pursuant to the verdict, the defendants appealed.

Strange for the plaintiffs.

No counsel for the defendants.

Daniel, J.

It is a rule of law, that when an action is brought by or against the husband, or by the husband and wife, jointly, in right of the wife, the declarations of the wife are not evidence against him. Winsmore v Greenbank, Willes 577. Alban v Pritchett, 6 T. R. 680. Phillips' Ev. 64. If William B. May had been sued on the bond in his lifetime, these declarations of his wife could not have been given in evidence against him. And there is nothing in the case to shew that she acted as agent of her husband in the matter. The declarations of the wife were not made to the witness, as coming from or directed by her husband. The evidence at the time being inadmissible, the ex post facto circumstances of the death of the husband, and the wife administering on his estate, and being a party to the record, does not, in our opinion, legitimate it — it was illegal evidence from public policy ab initio, and it is so still. — ■ There must be a new trial.

Per Curiam. New trial awarded.