
    THOMAS AND WIFE v. HARGRAVE’S ADMINISTRATOR.
    Wife’s declaration — assent—res gesta — evidence.
    Where a wife is employed as the agent of her husband, her declarations in executing the agency, are a part of the res gesta and evidence.
    But where the wife keeps the keys of the coffers, and gives or refuses her husband money on his request, as she thinks prudent, that does not constitute a general agency in money matters.
    
      The declarations of a wife in a'matter where she does not act as agent for her husband, are inadmissible evidence, unless made in his presence.
    Assumpsit for money had and received. Plea, non assumpsit, and notice of setoff.
    
      *N. Wright, for the plaintiff,
    offered a deposition to prove [596 the declarations of Mrs. Hargrave, the intestate’s wife.
    
      Strait objects, her declarations are not evidence.
    He cited 1 Phil. E. 79; 2 Stark. 692.
    
      N. Wright contra.
    I expect to prove from the circumstances, that the wife was her husband’s agent in this business, and the declarations made in executing the agency: (10 Am. Jurist, 84; 10 John. 44.)
    
      Hodges and N. Wright for the plaintiff.
    
      Strait contra.
   WRIGHT, J.

You must first prove the agency. That done, what the agent said in executing the agency is part of the res gesta and admissible. There is in the deposition evidence tending to prove the agency, such as will be left to a jury. You can read it.

WRIGHT J. to the jury. To authorize you to regard the declarations of Mrs. Margrave in this case, the plaintiff is bound to satisfy you that she was her husband’s agent in this business, and made the declarations while performing her agency. This may be done by circumstances or by positive proof. If the evidence only shows that when money was in the house the wife kept the keys of the coffers, and refused to give her husband money as he called, that would not constitute her his general agent in money matters; and if such be the fact, her declarations, except made in the presence of her husband, should be excluded. If the evidence, under this explanation, satisfies you that any money of Mrs. Thomas came to Hargrave’s hand, the plaintiffs have a right to recover the amount with interest. But if the money was only left with him for safe-keeping, the interest would not begin to run until a demand, or the commencement of the suit.

Verdict and judgment for the plaintiff.  