The instrument upon which this action is brought is a promissory note, within the statute. (Kimball v. Huntington, 10 Wend. 675. Russell v. Whipple, 2 Cow. 536.) Being- payable at no specified time after date, like a note payable on demand, the maker was not entitled to any days of grace. (Story on Bills of Ex. § 342. Chitty on Bills, 410.) By its own express terms and legal effect it was due and payable immediately, and the statute of limitations would run, upon it, from its date. (8 John. 189, 374. 15 Wend. 308. 3 Denio, 12. 13 id. 201.) The .holder Yorks could have sued it the next hour after its delivery. The fact that it was payable at “Leicester's office" in Rochester, with interest, as in the case of a note payable *185at a bank, if funds were there to meet it, would stop interest, and implies, I think, that it was not expected to be immediately paid or presented for payment. But it was nevertheless due immediately, and payment of it could have been instantly required by the holder. Being thus due at the moment of its execution and delivery, the note could not be transferred so as to cut off any defense existing in behalf of Spencer at that time.
But, upon the defendant’s own testimony, there was obviously no defense to the note in the hands of Yorks, of any equity to defeat it before Yorks appropriated the proceeds of the McDonald note to his own use, for which note the defendant states the note in question was given in exchange. Up to the 8th of ¡November, 1851, the date of the order of Yorks upon Spencer’s attorneys for the proceeds of the McDonald note, the defendant’s note was a perfectly valid note in Yorks’ hands; and any purchaser or assignee of it, who received a 'transfer thereof in good faith and upon good consideration, would acquire a perfect title to it, free from all defense on the part of the defendant. If the note was given in exchange for the McDonald note, when Yorks took or appropriated the avails of that note to his oavu use, and from and after that time, the defendant had a perfect defense to the note in the hands of Yorks, or of any person who should receive it from him after that period. It thus becomes an important inquiry when the note was in fact transferred. If transferred on the 5th day of October, 1851, as sworn to by Yorks and Pattee, there is, and could be, no defense to it in the hands of the plaintiff. In his complaint the plaintiff alleges the making of the note and its delivery to Yorks on the 4th of October, 1851, and sets out a copy, and then alleges that the “ said Yorks afterwards, and on the fifth day of October, 1851, sold and transferred the same to the said plaintiff, who then and there became the bearer thereof.” This is a distinct positive allegation that the note was transferred to the plaintiff by Yorks on the 5th day of October, 1851. The production and *186proof of the note was prima facie evidence to support this allegation, and entitled the plaintiff to recover, if nothing further had appeared in the cause. Having made this proof the plaintiff rested, and the defendant called the plaintiff as a witness, who disproved this prima facie case, and showed that he acquired title to the note about a year before the trial, (which was in January, 1858.) Upon this proof the defense was not cut off, but was entirely available.
The plaintiff then proposed to prove that the note was transferred the next day after its date, not to the plaintiff, but to a man by the name of Pattee, who transferred it to the plaintiff. This proof was objected tó and received, and this presents the first exception for consideration. I am inclined to think this exception, since the code, well taken, and that the evidence ought not to have been received, without an amendment of the complaint, which would have entitled the defendant to have the cause go over the circuit, if he could have satisfied the court that he was misled or surprised, ' under section 169 of the code; but as I think there must be a new trial upon other grounds, and there is some doubt on this point, it is unnecessary to pass upon it now, as there can be no pretense of surprise in respect to this proof, on a second trial.
The exception to the decision overruling the testimony relating to the defendant’s cash book is not well taken. The defendant might refer to his cash book to refresh his recollection, but could not give the cash book in evidence. He had sworn positively on the subject, and had’doubtless previously consulted his cash book; and I do not understand the decision to have denied to the defendant the'right to refer to his cash book before testifying, but after he had given his testimony, to corroborate such testimony. For this purpose it was inadmissible to refer to it, and the decision was clearly right." The exception to the decision of the court, overruling the evidence offered by Whitney, I think, was not well taken. The question to which he was called to testify was not pecu*187liarly within the knowledge and competency of experts, if Whitney were in fact an expert in regard to handwriting. The jury were all qualified to examine and judge, from the appearance of the paper, whether the guaranty indorsed on the note was recently made or otherwise. They were entitled to inspect it, and base their verdict upon their own judgment and the evidence of their own senses from and upon such inspection. I think the question was not one upon which the opinions of witnesses were admissible. (Greenl. Ev. 488. 5 Seld. 376 and 80. 4 Denio, 373.) The evidence of experts has been allowed, in some instances, to show that a signature was in a simulated hand, but this is now disapproved of. (1 Denio, 343. And it was expressly held in 13 Wend. 81, that it was inadmissible to show by the opinions of experts at what time entries in an account were made; and this case is precisely in point upon this exception.
But I am inclined to the opinion that the case should have been submitted to the jury. It is true Yorks and Pattee swore positively as to the transfer on the fifth of October, and if the jury believed their testimony, they would have been bound to find a verdict for the plaintiff. Brit the question of their credibility was a question for the jury, and there was certainly considerable evidence in conflict with their testimony. The staleness of the claim, the time and manner of the alleged transfer to Pattee, the appearance of the indorsement, the neglect of Pattee ever to ask for payment of the note through some five years, when it appeared he was embarrassed and had judgments and executions against him, and the conflict between the statements of Spencer and Yorks in regard to the consideration of the note and other particulars, presented circumstances tending to impeach the testimony of Yorks and Pattee, which might, I think, well have been submitted to the jury. If in view of the intrinsic facts of the case and all the testimony before them, the jury had found a verdict for the defendant, as it would necessarily have been based upon a disbelief on their part of the testimony of Yorks *188and Pattee, I do not think this court would have heen bound, if at liberty, to set it aside. And this is the rule, as I understand it, upon which the judge at the circuit is at liberty to take the case from the jury. For the same reasons, and also because there are various exceptions in the case in regard to the admissibility of testimony, I think it was not a proper one in which to direct a verdict subject to the opinion of the court at general term. That is admissible only when the case presents questions of law alone. (Code, § 365.) This must be upon the whole case, and where there, are no exceptions for the reception or rejection of evidence. (16 N. Y. R. 604, 606.) I think, therefore, that there should be a new' trial of the cause, with costs to abide the event.
[Monroe General Term, March 7, 1859.Welles, Smith and Johnson, Justices.]
Hew trial granted; costs to abide event.