
    SAMUEL L. NICHOLSON, Respondent, v. HEMAN WAFUL, Appellant.
    
      Evidence.
    
    In this action, brought against the defendant as the maker of a promissory note for $450, dated April 28th, 1878, he denied that he had ever made such a note, and alleged that, if he had ever signed the note, it was while he was intoxicated, and that he only received $250, for which amount he had given his note. Upon the stand he offered to show that in 1870 the plaintiff said he had not $100 ; that for some two years he was employed by a firm of millers, and received one dollar and fifty cents per day, out of which he had to support a wife and furnish a house; that in June or July, 1872, he said he had no funds, and could not raise $100; which evidence was, against the exception of defendant’s counsel, rejected. Held, error ; that it should have heen admitted, as tending to show that the defendant had never received the money.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    
      K. Whiting, for appellant. Lansing dc Rogers, for respondent.
   Opinion by

Mullin, P. J.

Present' — Mullin, P. J"., Smith and Gilbert, JJ.

Judgment reversed, and new trial granted before another referee, with costs to abide the event.  