1. It may well be doubted whether Binney s testimony as to declarations made to him by Bradford Lincoln, Jr., in the absence of the defendant, was admissible in the plaintiff’s favor, for any purpose. Very clearly, those declarations were not legal evidence of anything more than was allowed to them by the judge’s ruling.
2. The evidence that the note was altered, after the defendant signed it, was admissible under the defendant’s answer, which denied that he ever made or signed the writing called a promissory note in the plaintiff’s declaration. Under this answer, the plaintiff was required to prove not only the defendant’s signature, but also that he signed the note declared on ; that is, a note for five thousand one hundred and eight dollars. On the plaintiff’s giving prima facie evidence of what he was required to prove, the defendant might rebut and control that evidence, by showing *48that the note had been altered after it was signed. And no law, of which we have any knowledge, requires a defendant to give a plaintiff notice, written or oral, of the evidence which he intends to produce by way of rebutting that which the plaintiff must produce in order to support his case.
3. The provision of Si. 1857, c. 305, § 1, is, that a defendant, who is sued by an administrator, may testify in his own'favor as to acts done and contracts made after the appointment of the administrator. The admissions of the defendant, testified to by Augustine Lincoln, were after the plaintiff was appointed administratrix, and the defendant’s testimony concerning them was rightly admitted. They were of that class of acts, denominated verbal acts, respecting which, we have no doubt, the statute enables him to testify. A different construction of the statute would be manifestly contrary to its spirit.
4. If the note was not wrongfully altered, but only was given for a sum greater than the consideration therefor, the plaintiff might legally have had a verdict for part of its amount; that is, for the amount of the consideration, and interest. But the case was put to the jury, by both parties, on the assumption and understanding that the verdict should be for the defendant, unless the jury should find that there was a consideration for the note to the full amount for which it was expressed to be given. The plaintiff is therefore bound by the verdict given on the ground upon which she chose to rest her case. The jury did not pass upon the question whether the note had been wrongfully altered; and it is evident, we think, that neither party desired that they should.
5. The judge rightly directed that the verdict should be put into the form in which it was affirmed by the jury.
Exceptions overruled.