#### Doe on the Demise of JOHN GARDNER et al v. JAMES KLUTTS.

The declarations of a woman made shortly after the birth of a child, that it had been born alive, are not competent to prove her husband’s title to an estate by the curtesy.

This was an action of ejectment, tried before Osborne, J., at the Spring Term, 1860, of Eowan Superior Court.

The lessors of the plaintiff were admitted to be the heirs-at-law of-Klutts, lately the wife of the defendant, James Klutts, the defendant, who claimed as tenant by the curtesy. To establish his title, the defendant proved by a witness that she was called in as a midwife to Mrs. Klutts on her confinement; that when she arrived, she found that the woman had been delivered of a child, which was then dead. The defendant offered to prove by this witness the declarations of the mother, to the effect, that the child had been born alive — that it had cried and survived its birth a few minutes ; and that the conversation occurred shortly after the birth of the child. The evidence was objected to and excluded by his Honor, and the defendant’s counsel excepted.

Yerdict and judgment for plaintiffs. Appeal by defendant.

*376 Fleming and Kerr, for the plaintiffs.

¡Boyden and B. R. Moore, for the defendant.

Pearson, C. J.

A wife is not a competent witness for, or against, her husband; State v. Jolly, 3 Dev. and Bat. 110. It follows that her declarations cannot be evidence for or against him; otherwise more weight is given to what she says, when not on oath, than to what she would say on oath; which is absurd.

The declarations, in ' this case, were made shortly after the birth of the child and, we will suppose, as soon as the midwife arrived, at which time the act of delivery was over — “ a fact accomplished.” So, whether the child was born alive or dead, could in no wise affect or have any bearing upon that fact. The suggestion, therefore, that this declaration of the wife was admissible as a part of there® gestee, is not supported.

The position that the declarations of the mother, in respect to her child, “ is natural evidence,” and admissible on that ground, is also untenable.

This kind of evidence is not based upon the competency of the witness, for it is the evidence of facts, as distinguishable from the testimony of witnesses, as is said in Biles v. Holmes, 11 Ire. 16. “ The actions, looks and barking of a dog are admissible as nat/u-ral evidence upon the question as to his madness; so the squealing and grunting, or other expressions of pain made by a hog, are admissible upon a question as to the extent of an injury inflicted on him. This can, in no sense, be called the testimony of a hog or dog,” so the declarations and looks of a slave are admissible upon a question as to the condition of his health; Roulhac v. White, 9 Ire. 63 ; Wallace v. McIntosh, 4 Jones 434. But the declaration offered as evidence in this case, clearly, does not fall within the principle of natural evidence, instantly after the delivery the existence and presumed individuality of the child was distinct from, and had no further connection with the mother. So, although expressions of pain and declarations showing her own loodily condition on the part of the wife, would have been *377admissible, if material to the issue, yet, what she said in regard to the condition of the child was collateral, and had no natural guaranty of truth. It may have been the voluntary expressions of a mother’s grief; but, on the other hand, the declaration may have been made under the influence of her husband, whose estate, as tenant by the curtesy, depended on the fact of the child’s having been born alive. There is. no error.

Per Curiam,

Judgment affirmed.