We do not think this objection to the competency of the witness comes within the exception to the Evidence Act of 1866. The reason for excluding a party whose opponent is dead, is evidently because he cannot be confronted by the other party. In this case the witness is called to testify to facts occurring between him and the survivor of the partnership. The sole reason for the exception here fails. The party is living, with whom the contract was made, and is not only ready to confront his opponent, .but, as the fact is, he has been sworn. It would be unfair to admit McGehee and exclude Jones. It would be using the exception for the very purpose it was intended to prevent, to-wit: letting in a party as a witness, when it was impossible that his opponent could' tell his tale.
The spirit of the law is to throw down the old barriers, except in cases where each -party cannot be met by his opponent. We think the intention of the law is best met, in a case like his, by letting both parties be heard.
Judgment affirmed.