the opinion of the court was delivered by
Green, J.We think the rejection of Fairlamb as a witness cannot be sustained. He was not, nor was the plaintiff, the successor in the title of a dead assignor of a thing in action, but a living person who had made an absolute assignment of the mortgage in question several years before suit brought. There was no deceased assignor of this mortgage in the case, and hence the proviso of the act of 1869, which excludes its application where the assignor of the thing or contract in action is dead, is inoperative. As Fairlamb is not a party to the record, and has no interest in the result, and as the policy of law, which would otherwise render him incompetent, has been removed by the act, he is a competent witness. The circumstance that Taggert’s administrator, in bringing his action, styles himself as assignee of Paiste and Fairlamb, does not make either of those persons parties to the record. There is no question as to the validity of the assignment from them to Taggert. The action is brought in the name of Taggert by his administrator, and this is authorized by the act of April 22, 1863: Purdon’s Digest, 485 pl., 130. The reference to Paiste and Fairlamb is mere matter of description. On the question of the piroof offered and rejected, it is only necessary to consider whether the fact propiosed to be piroved was, in any aspiect of the case, a competent fact. It is quite useless to discuss the question whether that one fact alone would be sufficient to charge the purchaser at the sale under the mortgage of the Mechanics’ Building Association, with notice that the Fairlamb mortgage was a piurchase-money mortgage. It may well be that the bare fact of its being a pDurchase-money mortgage would not of itself alone prove notice to anybody. But that is no reason why the fact, when offered in proof, should be excluded. It is certainly essential to the plaintiff’s case. It may be that when his testimony is all‘in it may not make out his case, but the Court cannot pre-determine that matter on this one offer. Whether there is *200other evidence tobe given we do not know, bnt, oí course, if this fact is excluded, other evidence would be of no avail. W 3 decide nothing more than that the offered proof was competent testimony. The final effect of the whole testimony is not before us, and cannot be now decided. The j udgment is reversed on these first and second assignments.
J udgment reversed and venire de novo awarded.