The plaintiff testified as a witness in his own behalf, of a conversation between himself and a person then deceased.

The evidence was competent, because the representative of the deceased person was not a party to the suit. C. <J. P., see. 343.

This would entitle the plaintiff to his judgment here; but then, it is apparent that “ a complete determination of the controversy cannot be had without the presence of other par ties;” for, if the plaintiff recover, the representative of the deceased payee of the note may sue either the plaintiff or defendant. To prevent that, C. C. P., sec. 65, makes it the duty of the court to have such party brought in. And yet, that would be hard upon the plaintiffs in this case, because as soon as the representative of the deceased payee is made a party it makes the plaintiff an incompetent witness, and defeats his recovery. This would be right if the representative desires *420to be a party, and to claim the debt; but it may be that he does not desire to do so. It may be that he desires that the plaintiff shall recover. And then it would seem that he ought not to be made a party against his wish, for the benefit of the defendant. It is clear, however, that if he desires to be a party lie ought to be allowed to be.

The defendant offered no evidence that he had paid the debt, and the jury found that he had not paid it. So that he owes it, either to the plaintiff or to the representative of the deceased. And if his object is to protect himself against a double liability, the same section of C. C. P., 65, provides that he may have any other claimant brought in and made a party in his place, upon his paying the money into court. And this is what he ought to have done.

The case will be remanded, to the end that the representative may have notice of the suit and'be made a party plaintiff or defendant as he may be advised.

Affirmed and remanded. Plaintiff will have judgment in this court for his costs only.

Pee Cubxam. Judgment accordingly.