The opinion of the court was delivered by
Dunton, J.The charge of the court below to the jury, as to the first articles named, bed, bedstead, &c., we think, in view of the evidence, was too general. The jury well might have understood from it that they were to find for the plaintiff, as to those articles, unless they found upon his part either an express consent to, or an express ratification of, their disposal by his wife to the defendant. We think such consent might be inferred or implied from the facts and circumstances which the evidence tended to prove ; and that the jury should have been so instructed. What we have here stated applies with special force as to the bedstead and babv-wagon. The defendant’s evidence tended to show that he purchased .them both of the plaintiff’s wife before the separation ; that the plaintiff knew of such purchase, and that they had been a long time in the defendant’s possession, but did not claim them until after his wife’s death. Assuming that this evidence is true, we think it is now too late for the plaintiff to disavow the sale of those articles by his wife. He should have done this before. A husband cannot stand by and see his wife use the proceeds of the sale of his property sold by her with his knowledge, and then afterwards reclaim such property. See Schoul.-Dom. Rel. 81, 100, and cases there cited.
While the common-law doctrine as to a husband’s ownership of his wife’s clothing was correctly stated by the court below, we think there was error in their application of it to this case. The conclusion of this part of the charge was so worded that, when taken in connection with the statement before made that the clothing was not embraced within the terms of the articles of separation, it was almost, if not. quite, equivalent to a direction by the *585court to the jury, that the defendant was liable for the clothing. While husband and wife live together, the former may, perhaps, have control of the clothing of the latter to the extent stated by the court; but in case of divorce, or the death of the husband, the wife’s clothing becomes her property. When the plaintiff and his wife separated, he gave her a certain sum of money and a share of the household furniture, which she took, together with her clothing, and left him, as it was understood by both of them, to take care of herself and never to return to him again, she, in consideration thereof, having attempted to release all her right as his wife, in his property. The separation was intended and understood by both of them to be final. We therefore think that although the clothing is not mentioned in the articles of separation, when the plaintiff permitted his wife to leave him and take her clothing with her, the fair presumption is, that he relinquished all right he had to his wife’s clothing, and that the same was thereafter subject to her control and disposal.
Although what we have said as to the clothing will probably dispose of this branch of the case, we think the court erred in admitting as evidence copies of Frary’s account, and also in their charge to the jury, both as to the Paisley shawl and upon the subject of damages.
Entries between third parties, to be admissible as evidence, must be made in the regular course of business and be contemporaneous with the principal fact done so as to be a part of the res gestee. It does not even appear by any competent evidence that the entries in question were ever made by anybody, except upon the copies themselves at the time the same were written ; nor are they bills received by the plaintiff in. the regular course of business. All the knowledge the plaintiff could have had in regard to them, was what was communicated to him by some one else. They were admitted as evidence to show when the Paisley shawl was purchased and how paid for ; so that the oath of the plaintiff does not make them evidence. He testified that he knew nothing about the purchase of this shawl until he was told of it some time afterwards by a third party.
The plaintiff testified that he supposed the wool from his wife’s *586sheep paid for the Paisley shawl, but said nothing as to .the keeping of the sheep, nor did he claim to own the wool. We do not think there is any presumption as to who kept the sheep. Prom what appears in the case, the sheep belonged to the plaintiff’s wife, and therefore the wool produced by them was also her property ; and when she exchanged it for the Paisley shawl, the shawl became hers, especially as the purchase of the same by her was confirmed or sanctioned by the plaintiff by his allowing her to keep it and take it away with her when she left him.
What the court said upon the subject of damages, would have been proper if the plaintiff’s wife had been living, so that the clothing could have been used for the purpose it was intended, and she and the plaintiff were living together as husband and wife ; but after her death, it was worth no more than any other second-hand clothing of the same quality, and in the same condition as to wear, cleanliness, &c. We see no reason why the ordinary rule of damages in actions of trover is not applicable to this case ; but the probable effect of what was said by the court to the jury was to influence them to-overvalue this property, while the measure of damages should be its true value, at the date of the conversion, with interest added, if the jury thought that it ought to be, and saw fit to do it.
Judgment reversed, and cause remanded.