A clear question of fact was raised by the testimony and fairly submitted to the jury, whether Philemon H. Smith was the agent of A. M. C. Smith in the transactions above referred to. Upon this point a verdict *144of the jury is decisive. The long interval of time that elapsed between the transfer of the boats and its public record was at least a matter of suspicion, and the jury had a right to take that fact into consideration in adjudicating the rights of the parties.
The only exception in the case that appears to deserve consideration is to the overruling of the objection to the admission in evidence of certain affidavits in regard to the ownership of the vessels produced from the Custom House. The objection to this evidence was that it was incompetent. This objection was too general in its character to avail the appellant upon this appeal. The specific ground of the objection was not stated. If it had been, the respondent might have so framed his question as to have avoided the objection. Moreover, an affidavit of ownership in a question of liability of this character, might well be held as a declaration by a party in interest to offset his own statement, or that of his legal representative in an action of this nature.
After examination of the testimony and the authorities cited in support of the claim, I do not think 1 that costs should be awarded against the executor in this action. It is not shown that there was such a presentation of the claim and refusal of its payment or to refer it as to make the estate chargeable with costs.
To this extent the judgment should be modified, and as modified affirmed.
Allen and Bookstaver, JJ., concurred.
Judgment modified, and as modified affirmed.