The judgment of the Supreme Court was entered February 5th 1877,
Per Curiam.— The case of Hanna v. Wray, 27 P. F. Smith 27, which we are asked to overrule, was decided by the whole court, and we are now as unanimous in sustaining it. There the transaction was between the deceased partner and Wray, the opposite party. It was held that Wray was incompetent as a witness upon the authority of Karns v. Tanner, 16 P. F. Smith 297, a case that has been repeatedly followed as interpreting the Act of 15th April 1869. It was said in Hanna v. Wray, “ that case, therefore, rules this, for here, by operation of law, the rights and liabilities of Mc-Vay 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 (Tanner’s case). 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.” It is argued that this is a departure from the letter of the act, and is a judicial rule affording no certainty, and Taylor v. Kelly, 3 Weekly Notes 206, is referred to as giving the rule that the letter of the statute must be maintained. This is incorrect. Taylor v. Kelly does not reject what is a judicial necessity, that of interpreting the language of the law-giver. It recognised Karns v. Tannar, which of necessity had to interpret an obscure clause, and puts the exclusion of the witness upon the words executor and administrator. These words are legally demonstrative that in every case where either is a party one of the parties to the litigation is dead, and hence the majority of the court concluded that in every such case the interpretation simply followed the letter. The minority conceding this as to parties to the action thought that exclusion does not follow when the witness is a disinterested third person, whose only relation to the ease is a mere affinity. That controversy has no bearing on this ease, for when we reach the next clause, “ nor where the assignor of the thing or contract in action may be dead,” *372we meet a different feature. The word “assignor,” unlike the the words executor and administrator, does not import an exact thought. The inquiry arises immediately, who is the assignor of a thing or of a contract ? Does the word necessarily import one who has assigned by a writing under his hand ? Or may liis right or title pass by other means ? There an assignor imports an assignee, but this is not expressed. Is the assignee one who takes by some formal legal document, or is he one who has taken the title otherwise, and now stands in the place of the former owner of the thing or the contract, clothed with all his rights, and, therefore, entitled to all his knowledge as a witness? He is as clearly included within the mischief, by the death of the former owner, as one is who claims by a written assignment from one who is dead. If the adversary shall not testify in one case, on what principle shall he testify in the other? He who claims by the act or by the operation of the law is, therefore, as fully within the mischief, and within the true intent of the clause, as one who claims by writing directly from the former owner. In either case his adversary should ■not be permitted to testify to what passed between him and the deceased owner, whose lips are closed. It would be rank injustice, yea, iniquity, to permit it. This is the principle of Karns v. Tanner and Hanna v. Wray, and it is a plain one, which the profession can easily understand, and which hair-splitting alone can confuse or confound.
Judgment affirmed.