
    Beaty v. McCorkle.
    1. Evidence. Incompetent. The deposition of plaintiff, taken in the lifetime of deceased party to the suit, can not be read after the death of that party when the suit is against the administrator of the deceased.
    2. Pleading. Evidence under plea of nil debit. It may be shown under the plea of nil debit that the plaintiff is a married woman. This evidence goes to the right of action and not to its form, and need not be pleaded in abatement. A married woman, except as to her separate property, which in this case she is not shown to have owned, is not competent to bind herself by contract, nor thus acquire property. The piano in controversy is shown to have .belonged to plaintiff’s husband, and hence she can not maintain this suit in her own name.
    FROM HAMILTON.
    Appeal in error from Circuit Court, July Term, 1872. J. B. Hoyl, J.
    Key, Eakin & Key, for plaintiffs in error.
    HendeRSON, for defendants.
    This is an action commenced in the life-time of D. Y. McCorkle, deceased, and revived against, his administrators. During his life-time the deposition of the plaintiff was taken and placed on file. On the trial of the cause the reading of the deposition was objected to, and the objection sustained.
    This action of the Circuit Court presents the only question to be determined by this court. Prior to the recent legislation on the subject, parties interested were incompetent witnesses, but are now, as a general rule, competent; but in actions or proceedings by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the" court. Act of 1869-70, ch. 78, sec. 1.
    I know of no adjudication of the question raised, and suppose it must rest upon a proper construction of the statute. This statute being in derogation of the common law, must be strictly construed. If the plaintiff had been introduced in person, she evidently would have • been incompetent. It is not perceived how introducing the statements of the plaintiff in a deposition can change the case. If it is supposed that because the deposition was taken during the lifetime of D. V. McCorkle, when the plaintiff was a competent witness — and the competency once established continues — the reply is, that during the life-time of the parties they are competent witnesses, and their competency being established, it would follow that, notwithstanding the death of one, the other would continue to be a competent witness. If the proposition is correct, all that can be required to render a party •competent against the express provision of the Act is, that the action should have been commenced during the life-time of both parties, and one die pending the litigation. Such cannot be the meaning of the statute; it is clear and explicit, makes no exceptions, and we think there should be none.
   JDeadebick, J.,

delivered the opinion of the court.

The plaintiff sued the intestate of defendants for the value of a piano sold him. He pleaded nil debit -and payment. In the life-time of defendant’s, intestate against whom this suit was instituted, plaintiff’s deposition was taken in this cause. On the trial she offered to read it. It was objected to upon the ground that the suit was now against the administrators of deceased, and the deposition was inadmissible. The objection was sustained by the court. It has been held by this court that a deposition of a party, taken in the life-time of the adverse party, but not offered in evidence until after his death, can not be read as evidence against his personal representatives.

The defendant was allowed to prove that plaintiff was a married woman at the time of the sale of the piano, over the objection of plaintiffs. This objection goes to the right of the wife to sue for and recover the value of the property sold, not upon the ground that she cannot sue alone, but because having no ■right to the property sold, she can not in any form maintain the action. It does not appear that the property sold was her separate property; on the contrary, upon the facts disclosed, the law makes it the property of the husband.

By the common law the wife can neither bind herself by contract, nor acquire any right by a contract made with her. The result is, as far as this record shows the facts, she had no right to the property, and acquired no right to bring suit for its value; and this fact, which affects the cause of action, and not merely the form in which it is brought, may be shown under the plea of nil debit, and need not be pleaded in abatement.

The judgment of the court below will be affirmed.  