In a suit against an administrator who does not elect to testify, the plaintiff cannot testify to facts known only to him and to the deceased unless it clearly appears that injustice may be done without his testimony.
STANLEY, J.
It does not clearly appear that injustice may be done without the plaintiff's testimony. G. L., c. 228, ss. 16, 17. Its exclusion was equivalent to a finding that justice did not require it, because the fact which she desired to prove was known only to herself and the deceased, and she could not be contradicted by the administrator or by any other witness. The legislature have prohibited the admission of her testimony on the ground that it would put the parties on an unequal footing, and afford an unreasonable opportunity for fraud. For aught that appears, aside from her own testimony (Harvey v. Hillard, 47 N.H. 551, 553, Fosgate v. Thompson, 54 N.H. 455), her services may have been gratuitous, or she may have been paid. There was no error at the trial. Moore v. Taylor, 44 N.H. 370, 374; Chandler v. Davis, 47 N.H. 462, 464; Brown v. Brown, 48 N.H. 90; Drew v. McDaniel, 60 N.H. 480, 482; Cochran v. Langmaid, 60 N.H. 571.
Exceptions overruled.
BLODGETT, J., did not sit: the others concurred.