The plaintiff claims title under Mary A. Simmons, by virtue of a deed from her administrator, made by order of the Orphans’ Court in proceedings for the sale of her real estate for the payment of her debts. The plaintiff cannot put in evidence declarations by Mary A. Simmons in support of her title. The objection is sustained.
The plaintiff having proved by a witness, James Simmons, son of Mary A. Simmons, deceased, that about the year 1879 or 1880 the said Mary A. Simmons bought certain lumber from Hazel & Pennewill, of Dover, which witness hauled to the town of Little Creek for said deceased and which was used in and about repairing said property, and that the said Mary A. Simmons purchased no other lumber from Hazel & Pennewill excepting the lumber that he hauled,—the witness was then handed certain bills rendered by Hazel & Pennewill to Mary A. Simmons for lumber for the year 1879 and asked if he could identify them as covering the lumber referred to in his testimony. The witness replied that he could not read. Caleb S. Pennewill, a member of the firm of Hazel & Pennewill, was then called to the stand and testified that the bills in question were for lumber furnished to Mary A. Simmons by the firm of Hazel & Pennewill in the year 1879 and 1880, that he made out the bills, they being in his handwriting, and that so far as he knew, the books showed that the bills were paid by Mary A. Simmons, or rather that they did not show that they were paid by any one else; that in the due course of business the bills were, so far as the witness knew, sent to Mary A. Simmons; that he did not send them to any one else to his knowledge; that some of the bills were paid, and some had payments credited on account, but were not paid in full.
The counsel for the plaintiff upon the foregoing proof, offered the said bills in evidence, to prove an act of ownership on the part of the deceased. The same were objected to by counsel for defendant on the ground that there was no proof that the lumber *480mentioned in the bills was ever hauled for use on the house in question.
Spbtjance, J.:—A majority of the Court rule that these papers offered in evidence are not admissible.
Grubb, J.:I will state that a majority of the Court think that at this stage of the proof all of these bills are inadmissible. Mr. Pennewill has testified that he undoubtedly sold lumber to Mrs. Mary Simmons, but has stated that he could not say that it went to Little Creek Landing. He has stated that he did not know who hauled it away from his premises. Mr. James Simmons has stated that all the lumber that went to the Little Creek property he hauled, and the reason that he gave was because he had the team. He said that he could not read, and therefore he could not look at the bills and state whether each item in these bills was actually hauled by him to Little Creek Landing. There is no positive evidence, therefore, that all, or any of the items mentioned in these particular bills ever was taken by him to Little Creek Landing, although he took lumber; but Mr. Pennewill does not say that Simmons was the party who took the lumber that he has charged in these bills. The jury will therefore have to infer, if we let it go before them, that this particular lumber mentioned in these bills was taken there because Hazel & Pennewill sold lumber to Mary A. Simmons, and James Simmons hauled lumber to her place. Instead of furnishing the best evidence of it—that is by reading out each item in these bills to him, and letting him say whether as a matter of fact he hauled these articles to the particular property in question—you ask us to admit these bills.. The bills are here and the man is here. Yet you are asking us to permit the jury to draw a conclusion upon secondary evidence, when the primary and proper evidence as to each item is here in the witness James Simmons.
There is another point, as to whether Mary A. Simmons recognized these bills. I have looked over these bills and most all of them are bills made out against her by Mr. Pennewill, found in *481her possession and not receipted. And there is no entry of credit by cash on the greater number of them, so far as I examined them. That being so, the jury would have to presume that she had assented to these bills by merely having them in her possession, and never having accepted a receipt for them. There might be another inference from that, that she held them and did not take a receipt for them because she objected to the correctness of them. If receipts were on them and they were in her possession, then, prima facie, it would be an admission on her part that these bills were due by her and that she had paid them. But as to those on which there are no such receipts, I do not see how there can be any inference of her admission that she received the lumber or owed them, and even if there were, although she admitted that she owed them and paid them, that would not admit that they were for lumber that was to go upon this particular property. That lumber might have gone elsewhere. There are credits by cash on two or three of the bills that I examined—I do not know how many more—and that might warrant an inference of her admission that they were due and that she had paid them to that extent, but it would not necessarily warrant the inference that although she had received them and paid them that they were to go on this particular property.
I am speaking of what you can prove by these bills. Not what you can prove by supplementary or other evidence. So that I say for the latter reason, and also for the first reason and better ground which I put it on, as not being the best evidence, we think we ought not to let it go to the jury, and therefore a majority of the Court have ruled that these bills are inadmissible.
Boyce, J.:It has been admitted by the counsel for the defendant, and the Court are agreed, that it is perfectly competent for the plaintiff to show as a matter of fact how Mary A. Simmons treated this property in her lifetime. But personally I am in grave doubt as to the admissibility of these bills as primary evidence for that purpose.