1. Many grounds of error are assigned in the bill of exceptions, which we cannot consider, as the facts on which they are predicated, are not admitted by the Judge below to be true.
*5872. One, however, about which there is no dispute, is presented, which requires our decision. In the progress of the trial, Leaptrot, the defendant in the action of trover, offered himself as a witness, to support his defence. It was objected that as B. F. Robertson, one of the firm of G. W. and B. F* Robertson, was dead, the defendant, in such case, was excluded, by the proviso to the Act of 1866. The Court sustained the objection. At this term, in the case of Moore vs. Harlan and Hollingsworth, from Richmond, the same point, as that now presented, was decided. We held, in that case, that Moore should not have been excluded from testifying for himself, until, after a preliminary enquiry by the Judge, it had been ascertained that the contract, in that case, had been made with Hollingsworth, the deceased partner; that if the contract had been made with Harlan, the proviso of the Act of 1866 did not, in spirit, intend to exclude him. Adhering to that decision, we are constrained to hold the ruling, in this case, erroneous, for the reason that it had not been made to appear, by extrinsic testimony or the answers of Leaptrot on the stand, or the answers of G. W. Robertson, or in any mode whatever, with which member of the firm the contract or cause of action had been made. We are strongly impressed with the necessity of such a preliminary investigation being had before deciding upon the incompetency of a party, to a suit to testify as a witness, in his own behalf, as, in this case, the death of a co-partner should, at most, but have furnished a prima fade presumption, that the contract had been made with the deceased partner; which Leaptrot ought to have been examined as to, in order to determine whether he was competent or not. Had an examination been made by the Court, or its authority, and in its presence, and the result should have shown that the contract or cause - of action, .or any transaction or conversation touching the cotton, which was sued for, had been with the deceased partner, then, unquestionably, obeying the spirit of the Act of 1866, Leaptrot should have been excluded entirely. But, surely, if, by that preliminary examination, it had appeared that the contract, or cause of action, or any subsequent modification of it, had been *588made with the survivor, G. W. Robertson, we can perceive no sound reason why Leaptrot should not have been permitted to testify as to that, restraining him from going be-, yond his transactions or conversations about the cotton, with the survivor.
There should, in no case like this in its parties, be an assumption of incompetency, merely because one o'f a firm is dead. This preliminary examination must ascertain the party with whom the contract was made, or cause of action arose, if practicable. If it fails to do this, then the party, offering himself as a witness, should be held incompetent. The great rule, it occurs to us, designed to be established by the Act of 1866, was to allow all parties, to a pending suit, to be heard, as witnesses in their own behalf, where, by this allowance, they could be placed upon a perfect equality, and not otherwise, as the exceptions enumerated clearly demonstrate. There can be no inequality where the transactions occurred between living parties, and, therefore, no reason for exclusion.
Judgment reversed.