The note in suit is a thing in action. Having been endorsed in blank by the payee, it became transferable by delivery. It was so transferred by George W. Bushnell to Sweet, and by Sweet to Ball, and again by Ball to the plaintiff. It has been held that the person who thus transfers a note is an assignor within thé meaning of § 399 of the Code. (Bump agt. Van Orsdale, 11 Barb. 634.)
Had the question been presented without the weight of authority on either side, I should have been inclined to construe the term as applicable only to cases where, by the operation of the 111th section of the Code, a right to maintain an action has been given to the assignee. I admit that the party who transfers negotiable paper, either by endorsement or delivery, is, in legal parlance, an assignor, and yet, no one but a lawye- would so understand it. The word, in its popular *96sense, is confined to those who transfer a right of action not transferable at common law. Such I believe to have been the sense in which the legislature used the term in the section of the Code under consideration. The leading object, every where conspicuous in the provisions of the Code in relation to the examination of witnesses, is to remove obstacles which the rules of the common law had interposed in the way of eliciting the whole truth, and not to impose new restraints. I do not think it was intended to prohibit the unrestricted examination of any witness who would have been competent at common law. (See Gagoe agt. Allen, 16 Bari. 580.)
In these views my brethren concur, and yet we also agree, that it is better to adopt the construction which has already been given, rather than establish a conflicting precedent. In doing this, we offer no violence to the language of the legislature. In technical law language, he who pays or lends a bank note, or transfers any thing in action negotiable at common law, is an assignor. This sense has been applied to the word as it is used in the 399th section of the Code. It will bear this construction, and, therefore, for the sake of uniformity in practice, as well as in deference to the opinion- of our enlightened brethren, we yield to it.
Nor do I think, that in offering himself as a witness, the defendant was required to specify the matters to which he proposed to testify. The proper practice is to offer the party as a witness generally. He is to be sworn, like any other witness, to give testimony in the action. Should it be proposed, upon his examination, to go beyond the matters embraced in the testimony of the assignor, the evidence, upon objection, would be excluded. I am of opinion, therefore, that the defendant was a competent witness on his own behalf, and that the referee was not at liberty to exclude him because he did not offer himself as a witness to the same facts, merely to which the assignors of the note had testified. The judgment must, therefore, be reversed, and a new trial granted, with costs to abide the event.