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 Term, 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 show that she acted as agent of her husband in the matter. The declarations of the wife *Page 28 were not made to the witness, as coming from or directed by her husband. The evidence at the time being inadmissable, 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
PER CURIAM. New trial.
Cited: Coble v. Coble,
(29)