delivered the opinion of the court,

There is but one question which we need consider — the competency of Robert Wray as a witness in his own behalf. He was called and permitted to prove a transaction, and the conversations between himself and Ira B. McVay, the deceased partner of the defendant.

The case turned upon the special arrangement, relating to the note out of which the controversy arose, made between himself and McVay. They were the acting parties in the transaction, and when McVay died, the truth, so far as it could be heard from his lips, died with him. Wray, therefore, stood upon a vantage ground, which he had gained by the death of McVay. This brings the case within the true intent and spirit of the exception contained in the Act of 15th April 186.9, and directly within the decision in *30Karns v. Tanner, 16 P. F. Smith 297. In that case the Act of 1869 was fully and carefully considered, and the interpretation then given to it has since been repeatedly recognised. -It was then said that the proviso was the product of two thoughts; one that there were certain confidential relations to be protected against disclosure ; the other, that there were cases of inequality where it would be unjust to open a door to one party that was closed by death against the other. In reference to the second class, it was said, it was evidently >the true purpose of the proviso to close the mouth of him who is the adversary of the deceased assignor.

The conclusion reached was this, in the language of the opinion : “ The true spirit of the proviso then seems to be that when a party to a thing or contract in action is dead, and his rights have passed, either by his own act or that of the law, to another, who represents his interest in the subject of controversy, the surviving party to that subject shall not testify to matters occurring in the lifetime of the adverse party, whose lips are now closed.” Hence it was held there that Mrs. Tanner, who became the owner of the estate, the subject of controversy, by a sheriff’s sale, after the death of Mr. Tanner, stood in the relation contemplated by the proviso, and that Mr. Tanner was the deceased assignor within the terms of the law.

That case, therefore, rules this, for here, by operation of law, the rights and the liabilities of McVay devolved upon Hanna, the surviving partner. There is clearly no difference in principle between a devolution of McVay’s estate upon another, directly by law, on the happening of a certain event, and its devolution by a sale at law. In either case it is the act and operation of the law, really more direct in the former case than in the latter., which required certain legal instrumentalities, to wit, the executions, in order to produce the result.

Nor can it make any difference that it was only one-half of the subject of controversy that thus devolved upon the survivor, when, aa here, the whole controversy rests on the transactions of the deceased partner. Hanna became accountable to the estate of McVay for one-half of the money received from the plaintiff, and liable for his partnership transactions, and was entitled to the testimony of McVay to defend his interest and that of the partnership, according to the spirit and intent of the proviso. But it is argued that the judgment against Hanna could not be given in evidence against the estate of McVay. This is a mistake. Clearly in the settlement of the partnership account of Hanna, as the surviving partner, with the legal representative of McVay, Hanna would be entitled to a credit for the payment of the judgment recovered against him as surviving partner, unless it could be shown that the judgment was recovered through his collusion or fraud, or his gross neglect. The simple question, therefore, was, whether the plaintiff should be permitted to recover against the partnership, in effect, through *31his own testimony, when the acting partner, who transacted the business, was dead, and the benefit of his testimony was lost to the partnership. It seems to us too clear that he should not.

The offer was not special to prove, by the testimony of the plaintiff, matters occurring between the plaintiff and Ilanna. How far such a special offer would take the case out of the proviso it is unnecessary to determine now, for the plaintiff here was offered as a witness generally, and it was not proposed to confine his testimony to transactions between Hanna and himself; while in fact the general offer of himself as a witness was actually followed by a narration of the transactions between McVay and himself. For this error the judgment is reversed, and a venire facias de novo awarded.