The opinion of the Court was by
Whitman C. J.We are of opinion, that the Court below-erred in not sufiering evidence to be introduced of the declarations of the intestate, when living, as to his destitution of property, prior to his purchase of Moore. Ilis declarations would be good evidence against him if he were living; and the administrator of his estate is not privileged in this particular, any more than he would be if he were alive. The declarations, if admitted, would have tended to show, that the deceased was not in a condition to have paid Moore any amount towards the consideration for the property, which Moore had conveyed to him; and that the pretence of his having paid three hundred dollars, or of his having the ability to pay the consideration named in the conveyance, was wholly fictitious.
Again; — we think the Court erred in saying to the jury, that Moore’s declarations were confessions of his having sold the property to the defendant, and evidence only tending to lessen his credibility. Some of his declarations were, to be sure, of that character; but many of them were parts of the res gestee; and as such were direct evidence of a sale. They accompanied the acts of the sale and delivery. Of this description were portions of the testimony of Hutchins, Pratt and Penney, which proved declarations accompanying the delivery of some of the articles.
Exceptions sustained. — New trial granted.