¶1The defendant was improperly admitted as a witness, as McAleer was not an assignor, within the meaning of section 399 of the Code; but of this the plaintiff cannot now complain. If the plaintiff’s objection had prevailed on the trial the defendant might have supplied, by other evidence, what he has now established by his own; besides, the plaintiff has obtained a judgment.
¶2The defendant being a witness, however, the question put to him, whether the bill between himself and McAleer had been previously adjusted, was improperly overruled on plaintiff’s objection. It related substantially to the same matter to which McAleer had been examined, and went directly to establish the amount of his set-off or claim against McAleer, which the evidence had left somewhat doubtful. Had he established this, it would, under the evidence, have been good as a set-off, (not counter claim) against the plaintiffs, who took the check some time after it was drawn, and with knowledge of its dishonor.
¶3We cannot say that had this evidence not been excluded the set-off claimed'would not have been allowed by the referee.
¶4There must be a new trial, costs to abide the event, and the order of reference must be discharged.