The Code, Sec. 590, is analyzed in Bunn v. Todd, 107 N. C., 266. The witness Pender is (1) “ A party to the action ” (and is also ‘‘interested in the event of the action ”); (2) He is offered “ as a witness to testify in his own behalf or interest ”; and (3) “ As to a personal transaction or communication between the witness and a person since deceased,” i. e. to prove a partnership, and further that the deceased partner specially authorized him to borrow this money. The only possible debate is on the second head above stated, whether the evidence given by the witness would be “ in his own interest.” Strictly, it would be “in the behalf” of plaintiff who called him as a witness, but the statute contains the words “in his own behalf or interest.” The true test of interest is whether the judgment obtained herein could be used as conclusive of the liability of the intestate’s estate in an action after-wards brought by the witness against the administrator of the deceased. Jones v. Emry, 115 N. C., 158. If by the testimony of the witness a judgment is obtained not only against himself (which is not opposed) but also against his co-defendant, who is the administratrix of one sought to be charged, as his partner, then the witness upon paying off such judgment could proceed to recover the pro rata share out of his co-defendants, and this judgment obtained against the two being conclusive in each action of the *151partnership, would bind the said administratrix to contribution. Thus the testimony of the witness would be “in his own interest ” and is forbidden by the statute.
If the action was between the alleged partners, the testimony of the witness (the alleged surviving partner) would be incompetent to prove the partnership. Sikes v. Parker, 95 N. C., 232; Armfield v. Colvert, 103 N. C., 147.
This case differs widely from Walters v. Sutton, at this Term. In that case the witness was the principal in the bond sued on, against whom judgment was taken, and he testified as toa personal communication between himself and his deceased surety. But this was not “ in the interest of the witness ” wlnpse liability was primary, and who could in no wise be benefited, nor could the judgment against him be in any wise abated by the judgment obtained upon his testimony against the surety. Butin this case, if the witness’ testimony establishes the partnership, the witness upon paying off the judgment can recover his pro rata share out of his co-defendant’s' estate, since the judgment would establish that the debt was due by both as partners, i. e. as co-principals. In excluding the testimony theie was no error.
No Error.