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The opinion of the court was delivered, October 30th 1871, by

Williams, J.

The ex parte declarations of Elias Howe were clearly inadmissible for the purpose of rebutting the testimony of the plaintiffs. They did not necessarily or directly tend to contradict any portion of her testimony. He may have been informed that the business was the plaintiff’s, and that it was carried on with her own means, and he may have promised that if she had not money enough he would furnish her machines on credit; and yet subsequently, on inspecting the monthly statements of *393the business of the company, including the account of E. R. McGregor, he may have expressed his dissatisfaction that the account had been permitted to grow to so large an amount, and directed it to be settled up. There is no necessary contradiction or inconsistency between the two statements. But if they were utterly irreconcilable it would not be competent to give in evidence his subsequent declarations in the absence of the plaintiff, for the purpose of contradicting her testimony: Gordon v. Bowers, 4 Harris 226; Graham & Co. v. Hollinger, 10 Wright 55. Such declarations do not come within any of the recognised exceptions to the general rule, which rejects all hearsay reports of transactions, whether verbal or written, given by persons not produced as witnesses. The utmost extent to which the exceptions have gone, is the admission of the declarations of a deceased subscribing witness' to a deed or will: Harden v. Hays, 9 Barr 151; and the declarations, in a lucid interval, of a subscribing witness to a note, who was insane at the time of the trial (Neely v. Neely, 5 Harris 227), in disparagement of the evidence afforded by their signatures. But there is a palpable distinction between such declarations and those which were admitted in this case. To sanction their admission would amount to a repeal of the rule which forbids the introduction of hearsay evidence.

There was no error in answering the defendants’ 4th and 8th points in the affirmative, if nothing more than their affirmance as mere abstract propositions was intended. But if the court, as the plaintiffs in error contend, submitted the facts upon which the points were based to the determination of the jury, then the answers were practically erroneous, for there was no evidence, so far as we discover, to sustain the facts as hypothetically stated in the points. The court may not have intended by the answers anything more than an affirmance of the points as abstract propositions, but by their unqualified affirmance the jury may have understood the court as intending to leave the facts on which they were based to their determination. "Where points are -submitted without any evidence to sustain them, they should be declined by the court, or, if answered, the jury should be told that they do not arise out of the evidence, and have no application to the facts in controversy between the parties. The defendants’ 5th point was rightly affirmed, and the question raised thereby was properly submitted to the jury. If E. R. McGregor was the general agent of his wife, to buy and sell goods and pay the indebtedness thus incurred by- her, and if, in pursuance of this agency, he transferred the machines and other articles purchased from The Howe Sewing Machine Company to the company in part payment of her indebtedness, is it not clear that, so far as regards the machines and other articles so purchased and transferred, there can be no recovery by the wife in this action ?

*394But there was error in charging the jury, as requested in the defendants’ seventh point, that if they should believe that Mrs. McGregor had no knowledge of the purchase by defendants from The Howe Machine Company until the morning of February 27th 1868, yet if she then knew of the same, and did not. notify the defendants or either of them, until the commencement of this action, of her claim to the goods, but permitted them to take possession and control of the same, she cannot recover in this action. The defendants purchased and took possession of the goods in controversy on the 26th of February, and there is not a particle of evidence that the plaintiff knew that the defendants did not pay for the goods at the time of the purchase, if such was the fact, nor is there any evidence that they have paid anything on account of the price of the goods since the plaintiff had notice of their purchase. How then is she estopped, by her failure to notify the defendants of her claims, from asserting title to the goods ? If the defendants have not been prejudiced by her silence, why should they be allowed to set it up as a bar to her claim ? It is by no means clear that the plaintiff would be estopped from claiming the goods if the defendants had shown that they paid for them after she had notice of the sale. If there is a recovery by the plaintiff on the ground of ownership, the defendants may have recourse to The Howe Sewing Machine Company, on the implied warranty of title in the sale of the goods. And if so, what right have they to complain of the plaintiff’s silence? But however this may be, it is clear that the plaintiff is not estopped from asserting her claim, unless it is shown that she has done or omitted something to the prejudice of the defendants.

Judgment reversed, and a venire facias de novo awarded.

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