
    The Administrators and Administratrix of James W. Darby, deceased, v. Reuben S. Rice.
    It is a general rule of evidence, that the declarations of a party shall not be admitted in his favor, but they may be admitted in those cases where, from the nature of the thing, it is impossible to furnish any other proof of the fact.
    This was an action of assumpsit, to recover the balance of the amount of sales of four bales of cotton, sold by the. defendant for the plaintiffs’ intestate.
    The defendant, who was a merchant, furnished him with an account current, in which the four bales of cotton were credited, which overpaid the defendant’s store account one hundred and forty-nine dollars, thirty-seven and a half cents, to recover which, this action was brought; opposite which balance the defendant wrote, “ received the above in fulland signed his name, “ R. S. Rice.” The defendant did not deny the account to be in his handwriting.
    The defendant then proved by Mr. Bernhard, that on the day the account *F¡q71 was dated, the deceased passed *by his store, with whom the deceased 09 J had an account, and told the witness if he had his account made out, that he would pay him ; this was about ten or twelve o’clock. The witness had not his account ready, but set his clerk immediutely to make it out. The deceased had come in a direction, as if directly from the defendant’s store, which was only twenty or thirty yards distant. The witness sent his clerk down the same evening to the deceased’s house, and got his money.
    The defendant then offered to prove, by this witness, that he, the witness, was owing the defendant, and as soon as he got the money from the deceased, he went to pay the defendant with the same money ; and on sight of the bills, the defendant challenged them, and said you got that money from Darby, to which the witness answered yes; but the Court refused to admit this testimony to go to the jury.
    The defendant then proved by William Rice, that he, the witness, had left a note of hand, which he had on the deceased, for $24, in tlie hands of the defendant, at the request of the deceased, to be paid on the settlement of their account, and that as the deceased was about to set out for Philadelphia in a few days, with the defendant, he, the witness, also left in the hands of the defendant between fifty and one hundred dollars, in Georgia and North Carolina bank bills, for the defendant to pay the deceased with, as the deceased had some accounts in the village to settle, and those bills would answer as well as any, and that the "said witness had not seen the note or bills since.
    The defendant then proved by Gerge W. Rice, that in the morning on which the settlement was made between the defendant and the deceased, when the deceased came into the store, he said he wanted a final settlement of his account, as he was afraid he was not long for this world : that defendant immediately got his account, and a settlement was made: that the defendant then went to the drawer,- in which he kept his money, and took a parcel out of it, and was Counting it t° the deceased down on the counter: that the deceased 09°J then had the account in his hands, and at that moment he, the witness was called out of the store on some other business, and did not see the deceased take the money up off the counter: that when he, the witness, came in again, he saw no money, and the deceased observed that if he had two or three more settlements made, his business would be finished : that there was no other person in the store at the time the defendant was counting the money on the counter, but the deceased, to whom he was to pay the money. And the defendant proved by other witnesses, that the deceased died that night, or the next after.
    The defendant further proved by Mr. Norris, another merchant in the village, that according to the usage and custom of the merchants of that place, in making out accounts, similar to the one on which this action is founded, if this account liad been presented to Mm, be should have concluded that it was settled and paid.
    To rebut the defendant’s evidence of payment, the plaintiffs proved by one witness only, that the deceased had a paper in his hand, and handed it to the defendant, and asked him to sign, set down, or strike the balance. The defendant took the paper and went to his desk, as if to write or do so, and then returned it to the deceased. But this witness could not, and did not pretend to say that the account on which this action is founded was the same paper; neither did he see or hear any talk of any money at the time..
    The jury found for the plaintiffs $149 37J cents. From which verdict the defendant appeals, and moves for a new trial on the following grounds:
    1. Because the verdict is contrary to law and evidence, inasmuch as there was sufficient evidence of payment to have authorized the jury to find for the defendant, as by law they were bound to have done.
    2. Because the presiding judge refused to admit the declarations of the defendant, as proved by Mr. Bernhard, to go to the jury.
    
      Gist, for the motion. Thomson, contra.
   *The opinion of the Court was delivered by [*599

Johnson, J.

The Court is of opinion that a new trial ought to be granted on the second and last ground. There are perhaps as few exceptions to the general rule, that the declaration of a party shall not be given in evidence for him, as to any other ; and they exist only in those cases in which, from the nature of the thing, it is impossible to furnish any other proof of the fact; for instance, if it should become a question whether a party knew the multiplication table, it could only be established by hearing him repeat it; what he has said, therefore, must be resorted to, to prove that he knew it. Upon this principle, the declarations of the defendant, so far as they went to prove that he knew the bank bills, which were paid to him by the witness, Bernhard, and that they had been in Darby’s possession, were admissible, because the fact was not 'susceptible of any other proof; and althoughnot conclusive, as to his having paid the money to Darby on this account, yet it furnished a circumstance which ought to have gone along with the other to the jury. This Court is of opinion that the presiding judge erred, in taking them from the jury, and that a new trial ought to be granted.

Colcock, Nott, RichARDSon and Hitgek, JJ., concurred.

G-antt, J., dissented.

See State v. Ford, 2 Strob. 524; Harp. 209 ; 4 McC. 263  