In mating out the plaintiff’s case, he relied upon an admission of indebtedness made by the defendant in conversations with Dr. Glover, previous to the commencement of the action. These conversations related to the indebtedness of the defendant to Dr. Glover, *548who had assigned his claim to the plaintiff. In these conversations, the defendant made a verbal statement of the items of his account, which were taken down by the witness,'Glover, in pencil. After stating these facts, the witness was asked, what was the amount of indebtedness as shown by the verbal account ?•
To this question the defendant objected on two grounds : 1. Because it assumed that the account was verbal. 2. That the account made'by "Glover should be produced. The objections were overruled by the referee.
Neither of these objections was valid. It is sufficient as to the first, to say, that the witness had just stated that the account was not in writing. It could only, therefore, be verbal, and nothing was assumed on that subject beyond what the witness had stated.
As to the second objection, it is a sufficient answer to say, that there was no account made between the parties which could be given in evidence. The memorandum made by Dr. Glover, was not shown to the defendant after it was made. It was nothing but a memorandum made by a witness, by which he could, if he found it necessary, refresh his recollection, and which the witness might be called upon, on cross examination, to produce to test his accuracy. Upon both points I think the referee ruled correctly. It must be remembered, that at this time there was no evidence in the cause on this subject, and the single question is, whether the referee could have excluded the proof of this conversation, because one of the parties made a memorandum of it.
The question was, however, objectionable on another ground, which, if it had been made at the time, would have called for the exclusion of it. It asked the result formed in the" witness’ mind from hearing items of an account stated by the defendant. This" was improper. The witnesses should have been asked to detail the items of the account as stated by the defendant, and the referee was the proper person to ascertain the balance. If the defendant had said, I have received $400, and have paid the plaintiff $200, it would have been proper for the *549witness to state both admissions, leaving to the referee to decide that $200 remained unpaid, and it would not be proper to ask the witness what was the balance due from the defendant after deducting the payments made by him from the sum he admitted due.
I do not think, however, the defendant can now avail himself of this ground of objection. The case states the objections he made to the question, neither of which was tenable, and where particular grounds are stated the party cannot, on the argument, object to evidence for other reasons which could at the time be obviated. Had the form of the question been objected to on the trial, it could have been varied, and the objection renewed.
The whole evidence on this point, too, was not very material, because the same witness, in stating another conversation, said, that the defendant stated he could not have paid the money, but was willing to have had judgment against him for the same amount, $759. The same evidence appears in other parts of the testimony.
The admission of evidence after the plaintiff rested, although cumulative, was within the discretion of the referee, and with his decision on that point we would not interfere on appeal.
My conclusion is, that the motion to set aside the report should be denied.
Ordered accordingly.