The opinion of the Court was delivered by

It is contended, on the part of the appellants, that the objection to their competency as witnesses cannot prevail by reason of the proviso to Section 415 of the Code, because the respondent is not sued in his representative character as executor of Richard Watts, deceased.

The statute must be construed by the intent appearing on its face. Its purpose cannot be defeated by the mere form of the proceeding selected by a plaintiff, for if this were allowed its application would depend not on the real issue involved, but on the form of the action which plaintiff might please to select. If this were permitted, the operation of the proviso would be controlled by the mere will of the plaintiff. Its benefit may be claimed if the party is “prosecuting or defending the action as executor, administrator, heir at law, next of kin, assignee, legatee, &c.”

Whether he is so defending must depend on the nature of the defense by which he seeks to resist the claim of the plaintiff, and must be determined by the issue raised through the pleadings.

Here the respondent (the defendant below) claims title to the notes, not in his own right, but as executor of Richard Watts, his *82testator, to whom they were payable. The issue raised by the pleadings is, whether they of right belong to the plaintiffs or to the defendant as such executor? He asserts no title in himself individually, but as executor of Richard Watts, for the benefit of whose estate he is contesting the claim of the appellants. Suppose 'one sued who defends through a right vesting in him as an assignee. Is he deprived of the benefit, in terms extended to him by the proviso to the said Section, because the plaintiff in his complaint did not style him assigne^, although his whole right and interest are derived from an assignment and depends on its validity? This ground of appeal cannot be sustained.

It is next objected that the Circuit Court erred in excluding the testimony of the appellants as to the declarations of Richard Watts to Mrs. Boazman and Mrs. Harriet Watts.

The appellants contend that as they were not made to them they are not within the terms of the said proviso. The “transaction” on which the testimony was to bear was one directly between the appellants and the deceased and the declarations made in their presence. It was in respect to the alleged gift; and though the declarations were made to third persons, they were, in the very language of the Code, “in regard to a transaction between such witnesses and a person at the time of the examination deceased.”

The distinction contended for is against the obvious purpose and intent of the proviso, which is to exclude the evidence by a party interested in the event of the suit of any transaction or communication with a deceased by which such event may be determined in favor of such witness. If the testimony of the two witnesses, thus properly excluded, was considered by the appellants as important in their behalf, it is strange that they forebore to introduce Mrs. Boazman, who was present on one of the occasions referred to.

JSfo such objection could have been urged against her competency. Nor does the brief disclose any relation to the case by Mrs. Harriet Watts, who was present at both the conversations of the deceased, which could have been successfully interposed to preclude her evidence. The testimony of Miss Lou. Watts, (who was also present at the time of the alleged declarations of the deceased to Mrs. Boazman and Mrs. Harriet Watts, and one of the persons with them called and addressed by the testator,) so far from sustaining the case made by appellants, entirely contradicts all notion of a present gift- and leaves the corhplaint without anything to rest upon.

*83It is not necessary to refer to authority to show that whenever it appears that the testimony is insufficient to make.out the plaintiff’s case, or there is a total failure of proof to sustain it, the proper course is to order a nonsuit.

The motion is dismissed.