The objection that the surrogate should have allowed the appellant to testify in his own behalf as to what took place between him and the intestate, in reference to making the note in question, &c., must be determined upon the law as it existed at the time of the hearing before the surrogate, which was in June, 1861. At that time the exception in section 399 of the code, bearing upon the question, was as follows: “ except that a party shall not be examined against parties who are representatives of a deceased person, in respect to any transactions had personally between the deceased and the. witness.” The evidence offered and excluded was not offered and would n6t have operated against a party who was the representative of a deceased person. The only party in the case who sustained that relation was the appellant himself, and therefore the exception in the section did not apply to him, unless the singular ground can be maintained that the testimony was offered by the appellant against himself in his representative, character, which it seems to me was not within the content plation of the legislature. This view derives strength from the fact that the legislature of 1862 amended the 399th section of the code so as to adapt it to precisely such a case as the present.
*143[Monroe General Term, September 1, 1862.If my brethren concur with me in the foregoing, it will be useless to consider the other points raised; as, in case of a new trial, the evidence offered would be inadmissible, under the last amendment, and the appellant would have to rely on other evidence to establish his claim.
The decree of the surrogate should be reversed, and the proceedings remitted to the surrogate for a new rehearing.
Johnson, J. C. Smith and Welles, Justices.]