The first objection is not well made.
Mrs. Lindley, as the widow of the intestate, was interested in his estate. If the administrator of the estate was unwilling to make the affidavit necessary for the protection of the estate from the enforcement of an unjust claim against it, either from the want of the necessary information or other cause, it was proper to admit her, better informed, so to do, for the protection of her interest, which otherwise might be jeopardized. And in this case her intervention worked no delay. Eccles v. Hill, 13 Tex., 67.
In Eborn v. Zimpelman, 47 Tex., 503, the right of the heir to make the affidavit to the plea of non est factum with the assent of the administrator was recognized, and we think it a correct practice, and in many cases very necessary to the ends of justice.
The second error assigned is not well taken. In truth the charges of the judge in respect to the burthen of proof were more favorable to appellant than she had a legal right to ask. The court charged the jury “ that the note shows prima facie a consideration, and that the defendant must show that there was no consideration or no sufficient consideration,” and that the burthen of proving a failure of" consideration is upon the *267defendants; and although the plaintiff show no other consideration than that expressed in the note, unless the defendant show from the evidence that no consideration or no sufficient consideration passed from the plaintiff to Bindley, then you will find for the plaintiff.
This charge is not very accurate, but certainly was not to the prejudice of the plaintiff. The rule in cases of this character, where a want of consideration is set up, is very aptly stated in Delano v. Bartlett, 6 Cush., 367: “ It was incumbent on the plaintiff to prove a consideration for the note which was the foundation of the suit. That was a part of her case, and the burden was on her to establish that fact. But the note itself was prima facie evidence of a consideration, so that by producing the note the plaintiff made a prima facie case. That evidence, if not rebutted, would be sufficient to maintain the plaintiff’s case. Bat it was competent for the defendants to rebut this evidence, and thus to avoid the prima facie case made by her. Accordingly the defendants did offer evidence6to rebut the evidence on the part of the plaintiff, and to show that there was no consideration. The evidence on both sides applied to the affirmative or negative of the same proposition of fact—-a consideration for the. note,— and the plaintiff’s case requiring her to establish that fact, the burden of proof was all along on her to satisfy the jury, upon the whole evidence in the case, of the fact of a consideration for the note. Powers v. Russel, 13 Pick., 76.
The third assignment of error, to the admission of Bindley’s declarations of his non-indebtedness in evidence, is, in our opinion, well taken. In the bill of exceptions taken on this account, the judge explains: “The plaintiffs having been permitted to prove declarations of the intestate made to other persons, and not in the presence of the plaintiffs, the declarations of the intestate made to others, and at other times and places, were admitted by the court by way of rebuttal, being introduced by the defendants.” Manifestly this was error. While the admissions of a party against his interest, made verbally, though always to be received with *268great caution, are competent testimony, and often of the most satisfactory nature, it does not follow that his declarations in his own interest, made at other times and places, and not in the presence of his adversary, are competent testimony, for that would be to permit a man to manufacture evidence in his own favor. Mr. Wharton says, where, the party seeking to prove admissions in no way altered his position in consequence of their utterance, the party making them can always prove the untruth, but not by introducing subsequent inconsistent declarations. Wharton, Ev., 1077.
[Opinion delivered May 24, 1880.]It is insisted for the appellee that this testimony admitted was immaterial and could not have misled the jury. We have examined the evidence carefully it was a case of very conflicting testimony. Had the verdict of the jury, upon either of the issues submitted, been for the plaintiff, we would not have been at liberty to disturb it, and we cannot undertake to say upon which of the issues the verdict was found. The testimony of Houston, as to the declarations of Lindley in respect to his indebtedness, being sufferred by the court to go to the jury with his sanction as to its competency to negative the allegation of consideration for the note sued upon, may have very materially influenced their finding. Certainly we cannot say that it did not. And as this was error, the verdict cannot stand.
We are of opinion that the judgment should be reversed and the cause remanded.
Beversed and remanded.