The plaintiff relies on the exception in the St. of 1857, c. 305, enabling parties to civil actions to be witnesses therein, “that when an executor or administrator is a party to the suit, the other party shall not be admitted to testify in his own favor.” The defendant relies on the exception to this exception, namely, “ except as to such acts or contracts as have been done or made since the probate of the will or the appointment of the administrator.” In this case an administrator de bonis non is a party to the suit. The defendant offers himself to testify and does testify to facts which took place before the appointment of the administrator who is a party to the suit. This fails to bring it within the exception to the exception, and the testimony should therefore have been rejected. It is said that this is not within the reason of the statute; that “ the administrator ” means any administrator, and that as the acts testified to took place after the appointment of the original administrator, the testimony was rightly admitted. But we are of opinion that “the administrator” must mean the administrator who is prosecuting the suit; and supposing there is a privity between him and the original administrator, still this testimony was not admissible under the statute.
New trial ordered.