¶1We are of the opinion, that the plaintiffs were entitled to prove the facts contained in their offer. The facts offered would have been a sufficient answer to the objection that they had affirmed the right of property in Michael, by bringing a suit and recovering a judgment against him. The only difficulty in the case is, whether the refusal to receive this testimony was a mere exercise of judicial discretion on the part of the judge after the case was closed, for if the refusal to receive it was put upon that ground, his decision cannot be reviewed upon a bill of exceptions.
¶2Whatever may have been the fact upon the trial, as the bill of exceptions is made up, we can come to no other conclusion than that the question of the materiality of this testimony was entertained by the judge, and passed upon, before he finally ordered the complaint to be dismissed. It is true, that the bill states that he dismissed the complaint before this offer was made, but it also states that he dismissed it after it was made. The bill, after setting forth the fact of the offer, then goes on to state, that he thereupon directed the complaint to be dismissed. If he refused to receive the testimony, upon the ground that the case was closed and disposed of, there was of course no occasion for this direction. There was no necessity for making a second order that the complaint be dismissed. From the fact that a second order was made, it is impossible *386for us to reach or adopt any other conclusion, than that the judge passed upon the materiality of the offer; and that after having done so, he again directed the complaint to be dismissed.
¶3Our conclusion is founded entirely upon the bill, as the parties have made it up; but we think it due to the presiding judge to express our doubt if his attention was called to all that was embraced in the offer; or if it was, the case furnishes an illustration of the effect of allowing complicated offers of testimony, instead of ruling upon particular items of evidence or specific questions.
¶4Judgment reversed, and new trial ordered.