When this case was before the court at June term, 1878, ByNüm, J., in delivering the opinion remarked that “ the law and merits of the case are probably with the plaintiffs, and it is with reluctance that we are compelled to withhold an affirmation of the judgment rendered below, and to award a venire de novo,” (79 N. C., 589.) The verdict is again for the plaintiffs upon the single issue submitted, and the fact found upon which rests their equity to follow and subject the money paid into the clerk’s office to their claim against the intestate, W. R. Benny, their former guardian. The form of the issue may be obnoxious to the criticism of the defendant’s counsel, as containing a series of alternative propositions, which should have been separately presented, or separately passed on by the jury, yet as an affirmative answer to either entitles the plaintiffs to relief, no exception thereto can be sustained. The right to the relief is fully supported by the authorities cited by the plaintiffs’ counsel. Beam v. Froneberger, 75 N. C., 540; Younce v. McBride, 68 N. C., 532; Cook v. Tullis, 18 Wall, 332.
Upon the trial of this issue, the proper response to the others' with certain additional facts being agreed on by the parties, the plaintiffs offered in evidence, and after objection were permitted to read to the jury the deposition of the defendant, taken in a former action in which the present plaintiffs and other children of Samuel Coble by a former marriage were plaintiffs, against the defendant and W. A. Coble, surviving administrator of said Samuel Coble, for the settlement of the estate, the other administrator, the defendant’s intestate, being dead. The deposition tended to show the possession by Denny, as guardian, of a large amount of trust funds and their use in payment of the land purchased from Shaw, and was material upon the subject matter of enquiry.
We think the deposition ought not to have been received.. *342It was but a declaration, the verification not adding to its quality as evidence, made by David Coble in a suit to which his intestate was not a party, and the witness himself represented another and different estate. We know of no principle on which such evidence can be used to charge the estate of Denny, nor does it become competent because the deponent defends in the present action in the capacity of its representative. The rule is thus laid down in a standard treatise on the law of evidence :
The admissions therefore of a guardian or of an executor or administrator made before he was completely clothed with that trust, or of a prochein ami made before the commencement of the suit, cannot be received either against the ward or infant in the one case, or against himself as the representative of heirs, devisees and creditors in the other. 1 Greenl. Ev., § 179. So the admissions of one before he became assignee of a bankrupt are not receivable against him when suing as assignee. Fenwick v. Thornton, 1 M. & M., 51. The same view is taken in May v. Little, 3 Ired., 27, where a declaration of the wife made in her husband’s life time, but not as his agent, was after his death offered as evidence against her as his administratrix. In delivering the opinion, Daniel, J., with his usual brevity and clearness says: “The evidence at'the time being inadmissible, the ex post facto circumstances of the death of the husband, and the wife administering on his estate and being a party to the record does not in our opinion legitimate it. It was illegal evidence from public policy ab initio, and it is so still.”
The case cited for the plaintiffs, Mushatt v. Moore, 4 Dev. & Bat., 124, where an affidavit of one of the parties was read in evidence against him, is inapplicable, since the declaration and his relation to the cause were in his individual capacity. The reason excluding such testimony is that an estate, committed to the care and management of a per*343sonal representative, ought not to be charged or affected by what he may have said or done before he assumed that relation, since such an act or declaration is purely personal to himself.
It must be declared there is error in admitting the deposition, and there must be a venire de novo and it is so ordered. Let this be certified.
Error. Venire de novo.