#### Thomas C. Sterling *against*Stacy Potts, surviving executor of Stacy Potts, deceased.

IN CASE.

Evidence necess“Tt0 paper before.(a)

Liability of contrac« *of*wife. *(b)*

THIS action was brought for goods sold and delivered to the testator ; and was tried at the *Hunterdon*circuit, *October*1819, before Justice *Southard.*A verdict for $563.08, was given for the plaintiff, which was about the of the account in his leger. On the coming in of the *postea,*a rule to shew cause for setting aside the verdict, was granted; and the following reasons filed. 1. That the verdict was contrary to law and evidence. 2. That the judge would not permit the defendant to prove the contents of a certain receipt, alleged to have been given by the plaintiff, to the testator, although the defendant gave sufficient evidence of the loss of the receipt. 3. Because the jury assessed damages for certain goods, of which there was no evidence ; and for certain other goods, purchased by the wife of testator, without his order or consent; while in his last moments, and incapable of speaking; and which never came tc his use.

*The report of the judge shews the following case. 'The plaintiff, a merchant, proved his day-book and ieger, and gave them in evidence. They contained the same charges. Some of the articles were charged to testator’s wife. Sometimes she got goods, and paid for them out of her own money ; and many articles charged to him, were got by her direction, and received and used by him. Once, when he was very sick, she got a considerable bill, and on his getting better he remarked, that judging from it, she wished and expected he would die; but being reproved *892by the person to whom he spoke, and reminded, that it was through her kind and affectionate nursing, that he recovered, he admitted it, and said, as he often did at other times; that she was one of the best wives in the world; and also, that he would pay the bill, when he got his interest money from his sons. He used the articles, and praised part of them very much. One item in plaintiff’s account was, “To sundries, as per bill, $273.04.” This item he offered to support by proving a bill of particulars, and that they were delivered at the date; which was objected to, but permitted. He alsq offered to shew the defendant’s situation, as to wealth, family, connexions, and health, in order to prove that the articles were proper for his situation, &c. This also was objected to, but permitted..

The testator was between eighty-four, and eighty-six years old ; very respectable; very rich; had a numerous train of family connexions; was very sickly, and required much care and attention from family and friends, and kept but one servant. This wife was his third wife; thirty years younger than himself; had children by a former husband, but not by him; was laborious, frugal, and affectionate. He died on *Sunday,*late at night. The bill last mentioned, was bought by a female acquaintance of hers, by her direction and without his, on the day before his death, and the articles left until they should be sent for, which was done on *Sunday*evening. They were received by Mrs. *Potts,*in the house, about candlelight, an hour after he became speechless, and some hours before he died. Part of them were groceries, part not. Some of the groceries were used for the visitors and friends before he died, and at the funeral; and were necessary, there being none in the house. One or two of the-other articles were used by her, at the funeral; some were of a kind not to be soon used; but the whole bill, in the opinion of the witnesses, *was -necessary and suitable to the condition and degree of the family. Such as were not used, were in the house at the appraisement, but it was not shewn whether they were appraised or not. The bill of particulars was read to the jury, and the *893plaintiff rested. Two or three small items were not in the day-book, nor proved to have been delivered.

The defendant offered to prove the contents of a paper, containing an account which testator had paid to plaintiff, on which was a receipt and engagement, by plaintiff, not to trust his family, except upon a written order from him. The court directed its existence and loss to be proved. It was proved, by one witness, that about six or eight months before testator died, he shewed witness an account from plaintiff, which he had paid, on the back of which there was a written direction, about trusting his family, signed by plaintiff. Witness was an appraiser of the estate, a few days after his death, and was requested to look for that paper; he did so, among all the papers shewn to him, but did not find it. The executor, *then,*had the key of the place where they were kept, but *“*the lock was shackling.” After the appraisement, they were carried, in a trunk, to *W. Potts’*house. Another witness saw the endorsement on the account, about the same time: he was testator’s nephew, transacted a good deal of business for him and with him, and did not know of any other place where he kept his papers, except those two examined by the appraisers. Defendant then offered evidence of the contents of the paper, but the judge did not, think the proof had been sufficient, to justify its admission.

*Wall,*in support of the rule.

There are several exceptions to the plaintiff’s account. 1. A part of the goods were for the wife, who had a separate property; and charged to her in the day-book, but transferred to his account in the leger, without his order or direction; and there is no sufficient proof that they came to his use. 2. A part of the items were not supported by the day-book, nor proof of delivery. 3. The wife has no absolute power to bind her husband, by contract, even for necessaries, without his assent, precedent or subsequent. This assent may he implied by cohabitation, unless the contrary appears. Here no assent could be implied, as to the largest item of $273.04. He was *in extremis.*The goods were delivered when he could not speak, *and there is no rea*894sonable probability that they were all necessaries. 1 *Bac.*488. 1 *Esp.*238.

2. Proof of the contents of the receipt ought to have been admitted. 4 *Com. Dig.*92. *Ambl.*247. 1 *Ves.*344. 2 *John Ca.*488. 1 *Atk.*446. *Sw. Evi.*31. 2 *Dali.*116. 3 *Mass.*236. 1 *Caines’ Ca.*27. 2 *Caines’ Ca.*263. 1 *Bl. R.*552. 5 *Mass.*101.

*L. El. Stockton,*in answer.

1. The evidence of the alleged contract between the parties, was properly rejected. The original should have been produced, unless *its destruction*was clearly shewn: mere allegation, that it could *not be found,*was not'sufficient. It had been in testator’s hands; he might have destroyed it; the executor, who had the key, might, to effect his purposes, have taken it away. Evidence of contents is, of all others, most easily made by the party, and most readily perverted; proof of loss ought, therefore, to be strict. *Gilb.*4, 5, 15, 16. *Esp.*144. 2 *Bl. Com.*368. *Pat.*44.

2. The verdict. It is not shewn that the jury considered the small items, which were not proved: without them, the ordinary allowance of interest, would have made a larger sum. The goods most questioned, were delivered at testator’s, in his life-time, and of course to his use; they were necessary for the condition and state of his family ; and used in his life-time, and at his funeral. That he was sick, and therefore the wife was not to buy necessaries, for his comfort, lest he should die and the merchant lose, is perfectly absurd doctrine. Besides, the merchant was not bound to know his situation. He lived with her, was nursed by her, had paid bills which she had contracted, and was, therefore, bound in law, to pay this. 4 *Vin.*121. It is enough, for plaintiff, that these facts Were proper for the consideration of the jury, andthat the jury has found for him. *Coxe*228. 1 *Bac. Ab.*418.

3. There has been a full trial, and no injustice is apparent. 1 *Bl. R. 1,*418. 1 *Wils.*22. 2 *Wils.*307, 6 *Bac. Ab.*664. 2 *Salk.*334. 3 *Wils.*45.

*Wall*replied.

(a)

*а) Wills vs. McDole, ante 501. Denn vs. Pond, Coxe 379. Bozorth vs. Davidson, Pen. *617. Ford vs. Munson, 1 South. 93. Fox vs. Lambson, 3 Hal. 275. Kingwood vs. Bethlehem, 1 Gr. 221. Suydam vs. Combs, 3 Gr. 133. Insurance Co. vs. Woodruff, 2 Dutch. 541. Miller vs. Wack, Sax. 204. Smith*vs. *Axtell, Sax. 494. Stafford vs. Stafford, Sax. 524. Wyckoff vs. Wyckoff, 1 C. E. Gr. 401. Clark vs. Hornbeck, 2 C. E. Gr. 430.*See also *Den, Popino vs. McAllister, 2 Hal. 46. Condict vs. Wood, 1 Dutch. 319.*

(b)

*Campfield vs. Ely, 1 Gr. 150. Miller vs Miller, Sax. 386.*See *Cory vs. Cory, 3 Stock. 400.*

*895By the court.

We do not perceive, that any error has been committed by the court, or that any has been done by the jury. Let the rule be discharged, and judgment entered, for the plaintiff.