We think that the opinion of the learned judge below correctly disposes of the questions involved upon this appeal. It is apparent from an examination of this record that there was no evidence whatever of the delivery of the note in question. It might just as well have come into the hands of the plaintiff in the manner described by him, if the same had been found among the assignor’s papers, and which passed to the assignee; and, in view of the long period of time which has elapsed since the making of the note and the presentation of the claim by the holder thereof, this would seem to be the only conclusion which could be arrived at.
Objection is taken to the exclusion of the testimony of Mr. Jacob D. Mills, one of the makers of the note in question. Upon what theory any testimony pertinent to the issue which could be given by Jacob D. Mills should be excluded we are unable to imagine. It is urged that it was objectionable under section 829 of the Code, but we fail to find any provision in that'section which prevents the maker of a piece of commercial paper, when a claim thereon is-presented against his assigned estate, from testifying as to the circumstances-out of which such paper has arisen. But no such questions were asked the witness, and from subsequent events such a line of examination seems to-have been studiously and purposely avoided. But he was asked whether he had paid any portion of the obligation which was the subject-matter of the controversy, and this was excluded, there never having been any evidence of' a delivery of this piece of paper, although the ability to prove such delivery was within the reach of the plaintiff if he had chosen to avail himself of it. The question as to whether anything had been paid upon an obligation in respect to which there had been no proof of delivery was entirely immaterial, and it was not error to exclude it. After the decision of this case the parties-found that they had made a mistake. They have been speculating upon a given result in the action, but were disappointed at the conclusion at which' the court arrived, and they made a motion for a rehearing for the purpose of introducing other evidence which they had purposely failed to introduce, be*523cause, perhaps, fearful in respect to what its result might be; and thus having speculated upon what the decision of the court would be, and having failed, they then made an application for a rehearing to introduce this evidence, of which they were possessed all the time, and have another opportunity to speculate as to what should be done with another question which that evidence would introduce. The court declined to allow such rehearing, and to permit the plaintiff to thus speculate upon the result of the decision, and clearly properly so. The evidence was not newly-discovered evidence. It was apparently purposely suppressed, because it was thought not to be necessary, and it was the best and safest course not to introduce it. It is clear that under such circumstances no relief of the kind asked for could possibly be granted. The judgment should be affirmed, with costs, and the order should also be affirmed, with $10 costs.