l. It was entirely immaterial to the consideration of this case, that the defendant had been previously liable to the plaintiff in another contract, as that liability was suspended, if not discharged, by the acceptance of the indorsed note' The rule in such cases is, that even when the creditor is allowed to consider the previous contract as an existing debt, and declares upon it, he is notwithstanding obliged to sustain his action by proof .precisely the same as would be requisite if the suit was on the indorsement. *701[Bales v. Ryland, 6 Ala. Rep. 668.] There was no material error therefore, in excluding the evidence offered in this connection, as it was entirely unimportant without the other proof, and unnecessary with it.
2. With reference to the form of the interrogatories, it may we think be condeded, that as the point in issue was the residence of Pou at the maturity of the note, (the 1st July, 1839,) or at the time when the writ to Tallapoosa county was issued, (the 9th July, 1839,) it was irregular to inquire where his residence was in the fall of that year; but is this irregularity in the mode of asking a question a sufficient reason to exclude the answer when the commission has been executed, and the answer contains evidence which is unexceptionable? We incline to the opinion that if any objections can prevail on grounds like these, it should appear they were taken and notified to the opposite party before the commission issued. It is unnecessary however to decide this point in the case, as there is another ground on which it must be reversed.
Declarations or admissions of living individuals not parties to the suit, or having such an interest in it as to render their admissions evidence, are never admitted, that we are aware of, except in explanation of acts transacting at the time of the declaration. [Greenl. Ev. § 123, 124.] It will be seen several of the interrogatories inquire into the fact of Pon’s claiming a residence as entirely distinct from any other fact, and the answers, instead of giving his declarations explanatory of his acts, or showing they were made concurrent with the transactions or acts of which it is very possible they would be perfectly explanatory, proceed to state his declarations as a distinct matter of proof. This we think is clearly inadmissible, on the ground that it is merely hearsay, and would let in the declarations of persons who, if themselves examined as witnesses, might give a different account of the matter to be ascertained. [7 Cranch, 290; 3 Term, 708.]
4. The objection to proof of the fact that Pou voted at the August election in 1839, in Macon county, as well as his declarations at the time, were inadmissible, partly as against the same principle, but more particularly because the fact spoken of, as well as the declaration explaining or giving *702point to it, occurred after this controversy arose. We have before said the matter in issue was the residence of Pou when the note came to maturity, or when the first writ issued. BQth these matters occurred previous to August, 1839, when the act of voting took place. It is clear therefore, that neither the act nor the declaration accompanying it can be said to have taken place ante litem moiam, and for this reason should have been excluded. [Greenl. Ev. § 131, 132.]
Another question has been suggested at bar, which does not however arise in the bill of exceptions. It is, whether the residence in point of fact in the particular county where suit is brought, is essential, if the information of the plaintiff was such as to induce the impression that the residence was where the suit was commenced. This is certainly a matter which might well be considered if presented for decision; but that not being the case here, we decline to examine it.
Judgment reversed and cause remanded.