The widow of the intestate Whitcomb was not a party, nor one of the parties to the suit; Gen. Sts. c. 131, § 14; nor was the contract or cause of action made or transacted with her in the lifetime of her husband and in his absence. St. 1865, c. 207, § 2. Her competency as a witness in this case does not depend upon the recent statutes. The disqualification of pecuniary interest, which formerly excluded parties, is indeed now removed; but the rules of the common law, founded on public policy, which relate to the competency of the wife to testify for or against her husband, still prevail. Upon the point pressed by the plaintiff in review, that this disqualification of the wife, continuing after the death of her husband, is not limited to private conversations between them during marriage, but extends to all facts and transactions which then come to her knowledge, it is enough to say that the contrary has been recently decided by this court in a case like the one here presented. Robinson v Talmadge, 97 Mass. 171. Dexter v. Booth, 2 Allen, 559. Kelly v Drew, 12 Allen, 107. Coffin v. Jones, 13 Pick. 441, 445.
*525The conversations between the plaintiff in review and the executor Merritt were rightly excluded. They were the plaintiff’s declarations in his own favor, and do not seem to be of a character which required a response, or to have any tendency to establish the defence set up in the answer, or to discredit Merritt as a witness. The ruling that nothing which Litchfield said could be given in evidence must be limited by the precise state of the case, and the evidence to which it was applied.
We find no error in the instructions given. It was a question of fact, whether the note declared on and. the note described in the mortgage were the same, and there was evidence enough to warrant the finding that they were, especially in the absence of evidence that there was ever another note in existence to which the condition could apply. It was a mere misdescription in one particular. So there was evidence proper to submit to the jury whether there was a part payment upon the note within the time limited by the statute. Under the instructions, the jury must have found such payment, and that the note sued on was the only indebtedness of Litchfield to the intestate Whitcomb.
The ruling of the court, which was given in the course of the trial, as to the effect of a payment, treating the note, interest and tax money as one consolidated debt, becomes immaterial, in view of the final instructions given, and the findings of the jury thereon. And it becomes unnecessary, for the same reason, to consider the legal presumptions, somewhat discussed at the bar, which arise in reference to the application of unappropriated payments, when there are dents barred by the statute of, limitations. Exceptions overruled.