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.
Cited by 2 later decisions — most recently March 1949
2 state decisions
Good law ✅— No negative treatment on recordhow we know
¶1
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.
