¶1 The counsel who argued the cause for tho defendant in this court, almost conceded the incompetency of the witness to testify as to the matter excepted to, and we think might well have done so altogether. It is difficult to conceive of testimony that could more certainly involve a transaction with a deceased person, than did that of the defendant when he testified to the signing of the receipt by the intestate, and described the place where the same was done.
¶2 For aught we know, it may have been this direct testimony, rather than the proofs as to the hand-writing of the intestate, that influenced the jury in determining the genuineness of the receipt, relied upon to support the plea of satisfaction. The question as to the competency, or incompetency, of evidence must be determined by the substance of the witness’ answer, and not by the form of the inquiry put to him.
¶3 There must be a venire de novo.
¶4 Error. Venire de novo.