
    *Harrison C. Bird, Administrator de Bonis non of Matthew Hueston, deceased, v. Ralph Hueston.
    1 To authorize the admission of the declarations of a deceased person against third persons not claiming under him, on the ground that they were made against his interest, it should appear that he has peculiar means of knowledge of the subject-matter of the declarations. There should be a presumption of actual knowledge arising from his immediate connection with the transaction or from, a duty to know the fact. A mere inference from evidence that he might have known, or very probably would have known, will not suffice.
    2. The rule that husband and wife are incompetent to testify for or against each other, is not changed by the removal of incompetency on the ground of interest. Whether the husband or wife be a party to the action, or only interested in the event, the policy of the rule applies.
    Error to the district court of Butler county.
    Ralph Hueston, the defendant in error and plaintiff below, in the year 1852, commenced an action of assumpsit in the court of common pleas of Butler county, against Harrison C. Bird, as adminis ■ trator de bonis non of Matthew Hueston, deceased, to recover the price and value of work and labor alleged to have been performed by the defendant in error, for the intestate of the plaintiff in error. The cause was appealed to the district court, where it was tried at the April term, 1858, resulting in a verdict and judgment for the -defendant in error for 12,845.79. To reverse this judgment, the ■present petition in error was filed.
    Two bills of exceptions were filed during the progress of the trial, from the first of which the following is an extract:
    
      “The plaintiff, to maintain the issue on his part, gave evidence to ■the jury tending to prove, that from November, 1841, till some time in 1846, he superintended and managed a certain farm and 'distillery owned in fee by said Matthew Hueston, the defendant’s intestate, and that said services were worth from thirty to forty dollars per *month, which are the same services for which ¿this action was brought.
    “ And thereupon, the plaintiff, further to maintain this action, and to show that said services were rendered for, and at the request of •said intestate, offered to prove certain admissions of one Bobert T. Hueston (since deceased), made after the death of said intestate, Matthew Hueston; and, to lay the foundation for admitting the ¿same in evidence, he proved that said Bobert T. Hueston was a legitimate son of said Matthew Hueston ; that during the period .aforesaid, of the plaintiff’s service aforesaid, and until the death of -said Matthew, said Bobert was the attorney at law and agent of •said Matthew, and intimately acquainted with his business; that ■said Matthew died in 1847, and said Bobert was appointed and •qualified as administrator of his estate, and continued to be such until his (said Eobert’s) death, which took place in November, 1847, and that the estate of said Matthew was and is solvent, and ■largely more than sufficient to pay the debts thereof, and all costs ¿and charges of administration. And having given said peliminary proofs, the plaintiff called one Thomas Nichols, and caused him to be sworn as a witness, and offered to prove by him (the witness) ¿admissions made to him (the witness), in the summer of. 1847, by ¿said Bobert T. Hueston, while he was administrator, as aforesaid ■(neither the plaintiff, nor any agent or attorney of his, being present) , to the effect that the estate of said Matthew Hueston, deceased, owed the plaintiff for the services aforesaid; and to that end, inquired of the witness whether the said Bobert ,T. Hueston, after .said Matthew’s death, had made any admissions to him respecting ,said matter. To the admission of which testimony, or to the putting of said question, or any other question intended to elicit any •such testimony, to this witness, the defendant, by his counsel, objected ; but the court overruled the objection, and held that the testimony .was admissible, and suffered the question, and further questions of a like character, to be put; to which rulings of the ■court, the defendant, by his counsel, ^excepted. And thereoipon, the witness, in answer to said questions, gave testimony tending to prove admissions made by said Robert T. Hueston to the witness (no others being present, and the witness not being an attorney or agent of the plaintiff), in' the summer of 1847, that the claims of the plaintiff, on which this suit is brought, were valid claims against the estate of said Matthew Hueston, deceased. To the admission of which testimony, the defendant, by his counsel, ■excepted; but the court overruled the objection, and permitted said testimony to go to the jury; to which ruling of the court, the defendant, by his counsel, excepted.”
    It is also shown, by the first bill of exceptions, that the defend.■ant below offered to put in evidence a deposition of one Robert Harper (a witness absent from the state), which was-ruled out, and .an exception taken. It was admitted that Harper, at the time of the trial, and when his testimony was taken, was the husband of a legitimate daughter of Matthew Hueston, the defendant’s intestate; .and that said Matthew’s estate was largely more than sufficient to •pay all demands against it.
    . The following is a copy of so much of the second bill of exceptions as is material to be considered:
    “ The plaintiff, to maintain the issue on his part, gave evidence tending to prove, that he labored for the. defendant’s intestate, from November, 1841, to .January, 1848; and that his labor was worth $35 per month; and that he had never been paid for said •services; but his claim for the same remained due and unpaid to him—which are the same work and labor mentioned in the declaration. And thereupon the plaintiff rested in chief.
    “Whereupon the defendant, to maintain the issue on his part, .gave in evidence to the jury, after proving its execution by the plaintiff, an instrument in the words and figures following, to wit: “‘Received, Rossville, Oct. 19, 1846, of Matthew Hueston, the' ■^amount in full of all claims and demands which I have ¡against him up to this date, and he is entitled to all property of •every kind which I have heretofore owned or is now held by me at Hueston’s Mills, in consideration of his giving up to me all notes and accounts which he holds against me at this time. Said M. Hues-ton is also entitled to a note, which I have this day transferred to-him, on R. Harper for about five hundred dollars and interest thereon^ the same to be held by him without recourse on me.
    “1 Ralph Hueston.’
    “ It was also shown by the evidence, that the foregoing receipt is in the handwriting of the same Robert T. Hueston, whose admissions were offered in evidence, as shown by another bill of exceptions made part of the record in this cause.
    “And thereupon the cause was argued to the jury; and the defendant prayed the court to instruct the jury:
    “‘1. That the instrument aforesaid can not be contradicted or varied (in the absence of fraud), by parol testimony.’
    “And the defendant further asked the court, in the event of theeourt refusing to give the above prayed-for instruction, to charge-the jury:
    “ ‘ 2. That said instrument can not be contradicted, except by proof of fraud, surprise, or mistake.’
    “But the court refused to give the jury either of said instructions ; and charged the jury as follows :
    “ 1 That said instrument is in part a receipt, and in part an agreement; that the first clause thereof is only a receipt, which is in these words, to wit: “Received, Rossville, October 19, 1846, of Matthew Hueston, the amount in full of all claims and demands which I have against him up to this date;” that said clause might be limited by parol testimony; that it is butpnma facie evidence, and that, if the jury should be satisfied, by clear and convincing-proof, that the parties to said instrument (Ralph and Matthew Hueston), when the same was executed, did not*ihtend that it should cover the claim of the plaintiff for his labor aforesaid, then said instrument should not be held to cover such claim, and; would not bar the plaintiff’s action for said services.’ ”
    To the refusal of the court to instruct the jury as requested, as well as to the instruction actually given, the defendant below excepted.
    The assignments of error are:
    1. The court erred in overruling the objections of plaintiff in-error to the questions put to the witness, Thomas Nichols, and in-permitting said questions to be answered; and in overruling the •objections of plaintiff in error to the testimony offered of admissions made by Robert T. Hueston, and in permitting proof of such admissions to be given to the jury.
    2. The court erred in sustaining said Ralph Hueston’s objection to the deposition of Robert Harper, and excluding said deposition from the jury.
    3. The court erred in refusing to charge the jury as prayed for by plaintiff in error, and in the charges given.
    
      Thurman & McFarland, for plaintiff in error:
    
      Thurman argued:
    I. Of the admissions of Robert T. Hueston.
    The proof of these was not admitted on the ground of agency, for the admissions were made after the death of Ms principal, which •event terminated Robert’s agency.
    Nor on the ground of his being administrator, for that ground had been expressly decided by this court, in this very case, to be •untenable. 2 Ohio St. 488.
    Nor as res gestee, for they were mere casual, loose conversations ■with third persons, in the absence of the plaintiff or any agent of his, and had no connection with any transaction relative to the claim.
    But they were admitted as the declarations of a deceased person ^against his interest. (Observe—They were parol.) The court hesitatingly followed the general language in 1 Greenleaf” Ev., see. 147, not having access to the authorities therein referred to.
    • Now, I confidently affirm that the authorities do not support Greenleaf’s general language, as understood by the district court.
    The English cases are cases-of entries or written declarations made by- deceased persons. That it is still an open question in England, whether proof of oral declarations is admissible, see 2 Smith’s Leading Cases, 288, 289, top paging (197 hi), margin.
    As to the American cases, Mr. Wallace, in his note to Higham v. Ridgway, 2 Smith’s Leading Cases, 291 (345-348, note, last edition), says:
    “But although there are dicta in favor of the point-of Higham v. Ridgway, it is believed that there is no adjudged case in the United States which establishes it as a principle, that admissions or entries .by a third person against his interest are admissible evidence after .his death.”
    .Starkie and Phillipps both state the rule in terms that require that the declaration should be one that either directly charged the declarant with a liability to another, or discharged another from a liability to him.
    That was not this case.
    IT. Of Robert Harper’s deposition.
    Rejected by a majority of the court, because deponent’s wife was-an heiress of the estate. Not, however, on the ground of interest, for the act to improve the law of evidence removed that objection, as has been decided by this court. Butt v. Butt’s Adm’r, 1 Ohio St. 222; Lawson & Covode v. Farmer’s Bank of Salem, Ib. 209.
    But the court held that on grounds of public policy the husband could not testify in any case in which his wife was interested, If this is so, the converse is true, and the *wife can not testify in such case. So both Harper and wife, though not parties to the-suit, would be disqualified—notwithstanding the removal of their disability by the act to improve the law of evidence.
    Now, I admit that there are many things, such as matters of' marital confidence, matters that touch the reputation of the one- or the other, to which husband or wife can not testify—being precluded on principles of public policy wholly irrespective of interest.
    But the deposition in question was not of that character, and the-only objection to the witness was that his wife was indirectly interested in the event of the suit.
    But that objection being taken away by the statute, the objection founded on that objection also fell. The absurdity was not intended by the statute of saying to husband and wife, Your interest in the event of the suit shall not disqualify you; and, at the same time,, saying, You shall, however, be disqualified on principles of public, policy, founded on the existence of that very interest.
    
    III. Of the contradiction of the release.
    I maintain:
    1. No part of the interest is a mere receipt. It is a contract upon a good consideration. Its specific name is a release. Its legal interpretation and effect are:
    First. Matthew gives up to Ralph all notes and accounts which he holds against him, in consideration whereof Ralph:
    (1.) Releases Matthew from all claims and demands he has against him.
    (2.) Releases to him all property of every kind which Ralph had theretofore owned, or that was then held by him, at Hueston’s Mills—and also a note on R. Harper.
    It is not, therefore, an instrument that can be varied by parol testimony. Observe, there was no attempt to impeach it for fraud. May v. Babcock, 4 Ohio, 334; Stone v. Vance, 6 Ib. 246.
    2. But if the first clause of the instrument is a receipt, yet being *“ in full of all claims and demands,” it could not be contra-dieted without proof of fraud, surprise, or mistake.
    
    Both reason and authority make a clear distinction between an ordinary receipt, merely acknowledging the delivery of a sum of money or article of property, and a receipt in full of all demands. The former imports nothing but the fact of delivery—the latter imports an adjustment of accounts, agreement, settlement, delivery, and release. The former is a bare acknowledgment—the latter is-in the nature of a contract.
    See Livingston’s Law Magazine (April, 1853), vol. 1, pp. 238, 239, and the numerous authorities there cited, which abundantly support my proposition.
    The Supreme Court of Connecticut has truly and clearly stated the doctrine in these words :
    “ The true view of the subject seems to be, that such circumstances as would lead a court of equity to set aside a contract, such as fraud, mistake, or surprise, may be shown at law to destroy the effect of a receipt.”
    Fuller v. Crittenden, 9 Conn. 406. See also: Hurd v. Blackman, 19 Conn. 177; Pierson v. Hooker, 3 Johns. 68; Coon v. Knapp, 4 Seld. 402; Sessions v. Gilbert, Brayton (Vt.), 75; McDowell v. Lenaitre, 2 McCord, 320; Lawrence v. Schuylkill Nav. Co., 4 Wash. C. C. 562; Alner v. George, 1 Camp. 392; Bristow v. Eastman, 1 Esp. 172, 174; Eggleston v. Kincherbacker, 6 Barb. 458; Paige v. Perno, 10 Vt. 491; Thompson v. Fansatt, Pet. C. C. 184, 185.
    But the district court utterly disregarded these authorities and the reason of the case, and placed the receipt in full, and the ordinary receipt, upon precisely the same footing—admitting testimony to contradict the receipt in question, without any proof of fraud, surprise, or mistake-—-and charging the jury that it might be contradicted and overthrown without any such proof. The jury were told, *in effect, that although there was no fraud, no surprise, no mistake, although the parties perfectly well knew all the circumstances and their respective rights, and in full view of them the receipt in full was executed and delivered, yet it might be overthrown years afterward, and after the death of the party to whom it was given, and also of the person who wrote it, by proof-that satisfied a jury that the parties, when it was executed, did not mean that it should embrace what they knew its plain, unambiguous terms did embrace. This is manifest error.
    
      Clark & Ryan, and James B. Millikin, for defendant in error:
    1. Where a person who has competent means of knowing a fact, makes a declaration or written entry of it, which is against his own interest, such declaration or entry is, after his death, admissible as evidence of the fact, between third parties. 1 Greenl. on Ev., secs. 147, 148; Warren v. Greenville, 2 Strange, 1129; Higham v. Ridgway, 10 East, 109; Gleadow’s Ex’rs v. Atkin’s Ex’rs, 1 Cr. & Mee. 410; Spiers v. Morris, 9 Bing. 687; Ivatt v. Finch, 1 Taunt. 141; Sussex Peerage case, 11 Clark & Fin. 85; Union Canal Co. v. Loyd, 4 Watts & Serg. 393; Peck v. Gilmer, 4 Dev, & Batt. 254; Pearce v. Jenkins, 10 Iredell, 355; Chase v. Smith, 5 Vt. 556; Haniman v. Brown, 8 Leigh, 697; Coleman & Lipscomb v. Frazier, 4 Richardson, 146; Notes to Higham v. Ridgway, 2 Smith’s Lead. Cas. 197; Strode v. Winchester, 1 Lichens, 397; Reese v. Robson, 14 East, 32; Middleton v. Melton, 10 B. & C. 317; 1 Phillips on Ev. (new ed.) 300.
    2. The foregoing rule applies as well to oral, as to written declarations. 1 Greenl. on Ev., secs. 117, 148; Ivatt v. Finch, 1 Taunt. 141; Pearce v. Jenkins, 10 Iredell, 355; Notes to Higham v. Ridgway, 2 Smith Lead. Cas. 197; 1 Phillips, on Ev. (new ed.) 304; Coleman & Lipscomb v. Frazier, 4 Richardson, 146.
    *3. The written instrument sot out in the second bill of exceptions contains both a receipt in full and an agreement; and in so far as it is a mere receipt, it may be varied, contradicted, or explained by parol testimony. May v. Babcock, 4 Ohio, 334; Steamboat Missouri v. Webb, 9 Miss. 193; Saunders v. Hendrix, 5 Ala. 224; Clapp v. Tirrell, 20 Pick. 247; 1 Greenl. on Ev., sec. 305.
    4. A receipt in full does not differ, as to the latitude of explanation allowed, from other receipts. House v. Low, 2 Johns. 378; Toby v. Barber, 5 Johns. 68; Reid v. Reid, 2 Lev. 247; Harris v. Gorden, 2 Mason, 561; Ensign v. Webster, 1 Johns. Gas. 145.
    5. A husband is incompetent to testily in any cause in the event -of which his wife has a direct pecuniary interest, though she may be no party to the record. 1 Greenl. Ev., secs. 335, 341, 407.
   Gholson, J.

The first error assigned, is the admission, as evi•dence, of the declarations of Robert T. Hueston. These declarations were received as those of a person since deceased, and against his interest at the time they were made. The ground upon which such •evidence is received, it has been said, is the extreme improbability of its falsehood. The regard which men usually pay to their own interest is deemed a sufficient security, both that the declarations were not made under any mistake of fact, or want of information •on the part of the declarant, if he had the requisite means of knowledge, and that the matter declared is true.” 1 Greenl. Ev., -sec. 148.

It might be inferred from this statement, that the fact must have •become known, the information acquired, or the knowledge obtained, when the party had such an interest as would induce accuracy and care in ascertaining the truth. If this be required, the declarations should not have been received in this case, for the party wbo made the declarations, though then interested, had no pecuniary interest (which the authorities show to be indispensable) *at the time the. matters occurred to which the declarations related. In any view, however, it appears that “the only declarations of deceased persons receivable in evidence, are those made .against the proprietary or pecuniary interests of the party making them, when the subject-matter of such declarations is within the peculiar knowledge of the party so making them.” The Sussex Peerage case, 11 Cl. & Fin. 85-112; Gleadow v. Atkin, 1 Crompt. & Meeson, 410.

Now, we do not think that within the true meaning of the rule, the transactions which the declarations were offered to establish could be said to be within the peculiar knowledge of the person making the declarations. The action was brought by Ralph Hues-ton to recover, of the administrator of Matthew Hueston, for services rendered to the intestate in his lifetime. The declarations were offered to show that said services were rendered for and at the request of said intestate.” The person whose declarations were offered, was shown to be the son of the intestate, his attorney at law and agent, and intimately acquainted with his business. But this does not show any peculiar knowledge of the subject-matter of the declarations on the part of the person making them, or that it was his duty to know. We suppose the rule requires that it. should appear that the person had competent knowledge, that is, was cognizant of the fact, or that it was his duty to know. If he were not so situated as to make it his duty to know, an inference-that he might have known, or very probably would have known, will not suffice. There must be enough to create a presumption' that he did in fact have knowledge. The proof offered in this case fails to show that the particular transaction of the employment of Ralph Hueston by the intestate was under the immediate supervision and direction of Robert T. Hueston, or that it was his duty to-take cognizance of that transaction.

The foundation for the admission of the declaration *thus-failing, we need not proceed with an inquiry as to their form— whether the rule-only extends to written entries or memoranda, or also embraces parol declarations. This appears to be an unsettled question (2 Smith’s Lead. Cas. 343-347; Stapylton v. Clough, 2 E. & B. 933; Fursdon v. Clogg, 10 M. & W. 572; Lawrence v. Kimball, 1 Met. 524-527), and we forbear to express any opinion.

It is also alleged as error that the court improperly rejected the-deposition of Robert Harper, on account of the interest of his wife-in the result of the suit. It is claimed that the rule that husband and wife shall be incompetent to testify for or against each other, the question of interest being out of the way, only ajplies whore-the husband or wife is a party in the action. But we think the rule is not a technical one, depending upon the form of the proceeding, and equally applies, whether the husband or wife be the-party on the record, or be interested in the event of the suit. It is th'e policy of the -law, in order to insure conjugal confidence, that in no case shall husband and wife be allowed to give evidence for or against each other. O’Conner v. Majoribanks, 4 M. & G. 435; Wilson v. Sheppard, 28 Ala. 623. In a recent case in New York, very analogous to the present, after a full review, of the authorities bearing upon the question, it is said: “ Upon them all it is entirely clear that the rule of exclusion of husband or wife, where the other is a party or interested in the event, depends merely upon the existence of the relation, and not at all upon the existence in the party offered a's a witness, of an interest in the event, independent of that which the law may attribute to him by reason of the marriage relation.” Hasbrouck v. Vandervoort, 5 Seld. 153-160. It is nob material to consider whether the rule be one of policy, independent of the question of interest, or, as stated in an elementary work, be “ founded partly on the identity of their legal rights and interests, and partly on principles of public policy.” 1 Grecnl. Ev., sec. 334. If it does not rest solely on the ground of interest, *it still applies in full force, notwithstanding the removal of the disability upon that ground. 5 Seld. 157.

The last error assigned requires the construction of an instrument purporting to be a receipt of release. It is claimed on the-one side that the instrument is both a receipt and a contract, and may be divided, and the part purporting to be a receipt contradicted by parol evidence. O.n the other side, it is claimed that the whole writing stands upon the same consideration, and constitutes an entire contract.

The defendant in error claims that the writing will bear transposition, and the receipt in full be disconnected from the other1 matters referred to in the writing. We do not thirfk a fair construction will permit this to be done. A connection is shown both from the language and the character of the matters specially mentioned, and the result would appear to be, a contract of settlement between the parties, embracing all claims of the party executing it against the party to whom the instrument was delivered. It is unreasonable to suppose that Ralph Hueston, had he retained so considerable a claim as the one now sued for, would have transferred the-note for $500. It is equally unreasonable to suppose that Matthew Hueston would give up the notes and accounts he held against Ralph Hueston, if such an account against him was retained. It is a question of construction upon the particular instrument, and' we think it contains the terms of a contract, which parol evidence can not be permitted to contradict. The instruction asked of the court upon this point should therefore have been given.

It is urged that the court, substantially, left the question to the-jury whether the receipt was executed under a mistake,1 and that this was all that the plaintiff in error could properly claim. We-do not think that this cured the error in the refusal of the charge as asked, or was, substantially, giving that charge. The court expressly charged the jury that the instrument was to be regarded as in part a ^receipt, and in part an agreement, and that the first part was only a receipt, and might be limited by parol evidence. In this we think there was error, and not holding that the» •instrument was a receipt, but rather a contract of settlement and release between the parties, we need not inquire into the difference 'between receipts in full and ordinary receipts.

For the errors which have been pointed out, the judgment must .be reversed.

Brinkerhorr, C. J., and Sutlirr, and Peck, JJ., concurred. Scott, J., did not sit in this case.  