delivered the opinion of the court,
This action was brought against three persons as partners. More than a year thereafter one of the defendants died. Before trial his death was suggested, and his executors substituted.
Prior to the Act of 22d March 1861, the suit should have continued against the survivors only; but under that act, the executors were correctly substituted, and thenceforth it proceeded against the executors of the decedent, and the survivors jointly: Dingman v. Amsink, 27 P. F. Smith 114.
In Taylor v. Kelly, 30 P. F. Smith 95, it was said “a true enforcement of the statute of 1869, requires us to hold that it means what it says, when it declares ‘this act shall not apply to *113actions by or against executors, administrators or guardians. ’ ’ ’ There the action was brought against an executor, and we held the act did not apply. In Eilbert v. Finkbeiner, 18 P. F. Smith 243, the action was commenced between parties in their own right. The defendant died and his administrator was substituted. On a subsequent trial the surviving party was offered as a witness, and rejected by the court. In affirming that rejection, Mr. Justice Sharswood said, “ the plaintiff was clearly an incompetent witness against the administrator defendant.” Hence the rule of exclusion applies as well to cases where one of the parties has died after suit commenced, as to those in which he had died before. The condition of the parties at the time the witness is called, controls the question of competency. This, however, is not the only class of cases in wrhich the statute declares the party to be an incompetent witness. It extends to cases “ where the assignor of the thing or contract in action may be dead.” Hence it was said, in Karns v. Tanner, 16 P. F. Smith 297, 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 occuring in the lifetime of the adverse party.” It was held in Hanna v. Wray, 27 P. F. Smith 27, that by the death of one defendant, his rights and liabilities, by operation of law, devolved upon the surviving partner, who was a co-defendant. It is true, in that case, the offer uras to prove by the plaintiff, a transaction with the defendant, who had since died, and the question was reserved whether it was competent for the plaintiff to testify to matters occurring between him and the surviving partner. It was there said by Chief Justice Agnkw, that in the settlement of the partnership account of the surviving partner, with the legal representative of the decedent, the former would be .entitled to a credit for the payment of the judgment recovered against him as surviving partner, unless it could be shown the judgment was recovered through his collusion, or fraud, or his gross neglect. The question thus reserved in Hanna v. Wray, was decided in Crouse v. Staley, 3 W. N. C. 83. That was a case brought by Crouse against Staley and wife.' Before trial, Mrs. Staley died, and her administrator was substituted. The court below permitted Staley to testify in regard to transactions which occurred during the life of Mrs. Staley. This was assigned for error. In reversing the case it was said, the equality of the parties was gone in respect to their ability to testify. It was therefore held, that neither Crouse nor Staley were competent. The transaction sought to be proved by each occurred during the life of Mrs. Staley. It is not the extent of the interest of the estate of the decedent in the contract that excludes the surviving parties to that contract. If such an interest devolved on the survivor, as to charge the estate of the decedent, *114with a liability on the judgment, the rule applies. It was well said in Hanna v. Wray, supra, “ nor can it make any difference that it was only one-half of the subject of controversy that thus devolved on the survivor.” So the devolution of one-third, or any lesser part of the subject in controversy, on the survivors, works the same effect. It was also held in Kimble v. Carothers, 3 W. N. C. 88, that “ a living party shall not be heard to prove a claim against the estate of a decedent, who was also a party to the contract or transaction, whose lips are now sealed.” In Pratt v. Patterson, 3 W. N. C. 161, and again in Evans v. Reed, 4 Id. 301, we held that a surviving party was not competent to testify to matters which transpired during the life of a deceased party. It matters not that the offer be to prove a contract with the partner who is still living, when the effect is to charge the estate of the one who is dead. Although he may not personally have participated in the making of the contract, yet it does not follow, that if living he could not have testified to the fulfilment of it, or a subsequent release or discharge therefrom. Hence it follows in reason and on authority, that if Heister’s executors had not been substituted, the plaintiff was not competent to testify to any transaction which occurred during the life of the decedent. By the substitution, the letter and reason of the statute unite in sustaining the ruling of the learned judge. The second assignment presents no cause for complaint by the plaintiff in error.
Judgment affirmed.