This suit was brought to recover the amount of a claim assigned by William Jackson in his life-time to the plaintiff, who was his wife.
The plaintiff, a witness in her own behalf, was asked if her husband had transferred this claim to her. To this question the defendant's counsel objected as incompetent under How. Stat. § 7545; and the court sustained the objection. The court was in error. This was not a matter which must have been equally within the knowledge of both the deceased and the living party. The statute precludes the living party from testifying at all to mat" ters which if true must have been equally within the knowledge of the deceased party. Counsel for defendant appears to abandon the position taken by him in the court below, for he makes no reference to this point in his brief. This is the only question presented by the record for our determination.
After the case was submitted in this Court, a stipulation was filed, signed by the parties themselves, providing that “the cause be discontinued, and that the judgment be affirmed without costs in this Court." This stipulation was made without the knowledge or consent of plaintiff's counsel, and we cannot, therefore, treat it as valid.
Judgment reversed, with costs, and a new trial ordered.