The opinion of the court was delivered by

The defence in this case rests upon the payment of the deposit, which stood to the credit of the testator, to Mrs. Mary Dudley. The decease of the testator before that payment was made, revoked all right in Mrs. Dudley to demand and receive the amount deposited to his credit, by virtue of any agency to that end created in her by the testator. To justify that payment, the defendant must show that Mrs. Dudley, in her own right, could demand and enforce payment of the deposit to her. If she had that right, she must have, acquired it from the testator by virtue of some contract. Such contract, whatever it might be, was the contract in issue and on trial. It is not a contract collateral to the one in issue, and on trial. One of the parties to such contract having deceased, and this suit being prosecuted by his administrator, Mrs Dudley, the other party thereto, is excluded from being a witness touching any matter relating to that contract which happened prior to the appointment of the administrator. This was held in this case by this court one year ago. • We have no doubt as to the correctness of that decision ; but if we had, by repeated decisions of this court, it would be the law of this case.

The defence thus resting solely upon the right of Mrs. Dudley, the plaintiff could show against the defendant, in opposition to the defence, anything which he could against Mrs. Dudley if she were the actual defendant. Any declaration, oral or written, made by her, which tended to show that she had no right to demand and receive the money deposited, could be shown as well against the defendant as against her, and by the same kind and method of proof. By paying money which stood on its books credited to the testator to Mrs. Dudley, the defendant acquired no enlargement of her right to receive it, and gained no immunity in reference to the introduction of evidence which has a tendency to limit or *539take away her right to receive the money. The defendant does not stand as a privy or successor to Mrs. Dudley’s right, but on her right to receive the money. When therefore the defendant gave evidence tending to show that Mrs. Dudley held this money coming from the rents of the testator’s property, with the right to apply the same in payment for repairs and taxes on that property, the plaintiff had the right to show from his administration account as executor of Shubael Wardncr’s will, that to a certain date, all such repairs and taxes on that property had been paid, and also 10 show by Mrs. Dudley’s declaration in her letter of Sept. 4th, addressed to the testator, that a part of this deposit money was the surplus from the rents of the testator’s property, after paying for the repairs and taxes. If this had been a spoken instead of a written declaration, it is conceded that it could be proved by any person who heard it, without calling Mrs Dudley as a witness. We are unable to see how the principle is changed from the fact that the declaration is reduced to writing. When reduced to writing, the exact declaration is made certain; when spoken, the memory of the witness must be depended upon for the exact declaration ; and hence an element of uncertainty is introduced. Nor are we able to comprehend the force of the objection to proving that the declaration was made by Mrs. Dudley, by showing that it was in her handwriting, that it purported to come from her; was addressed to the testator, and found among his papers at his decease. No reason exists that we can discover, why the plaintiff should be obliged to call her to prove her declarations when reduced to writing, which does not apply with equal force when they are spoken. If the plaintiff fails to show to the satisfaction of the jury that she made the declaration claimed, whether written or spoken, he takes nothing by his proof. To establish that she made the declaration limiting or denying her right to receive the money, any legitimate proof was open to the plaintiff. We know oí no rule of law that restricts a party to a particular kind of proof to establish such declarations. -We think the letter was properly allowed to go to the jury. There was evidence tending to show that Mrs. Dudley wrote herself the first part of the letter, and caused it to be sent to the testator, and that part *540of the letter, if believed, tended to show that a portion of the deposit in controversy arose from the surplus of the rents from the testator’s property after the repairs and taxes had been paid.

The fact that the money was deposited by Mrs. Dudley to the credit of the testator, tended to show that it was the property of the testator, discharged from any right in Mrs. Dudley to withdraw it for the purpose of paying for repairs and taxes, as claimed by the defendant. This was the presumption which arose from the deposit having been made by her to the credit of the testator. To rebut this, the defendant made the claim and gave evidence to the effect that Mr. Dudley was in embarrassed circumstances, and that Mrs. Dudley feared if she deposited the money in her own name, it would be attached on her husband’s debts, and she thereby be put to trouble about it. To prove that this claim made by the defendant was without foundation, we think the court properly allowed the plaintiff to show that Mrs. Dudley’s conduct was inconsistent with such claim, in that at the time of making this deposit she had a deposit with the defendant in her own name, exposed to the same danger from her husband’s creditors which she apprehended might befall this if made in her name. If it was allowable for the defendant to set up this claim, the plaintiff had the right to meet and rebut it by any evidence having a legal tendency in that direction. The defendant’s ledger showing such a deposit to the credit of Mrs. Dudley, we think, had that tendency, and was properly admitted by the County Court.

Judgment affirmed.