This is an appeal irom a judgment entered on the report of a referee, in favor of tbe plaintiff. The action was brought to recover tbe amount of three promissory notes, alleged to have been made by tbe defendant’s testator. Tbe statute of limitations was pleaded, and tbe plaintiff, to take tbe case out of tbe statute, relied upon certain partial payments which were indorsed on tbe several notes in
The plaintiff was called as a witness in her own behalf, and was asked by her counsel, “ what money, if any, did you receive on that day” (the day of the date of one of the'indorsements). It was objected that the question was immaterial, but the objection was overruled, and the witness answered that she received twenty-five dollars to be indorsed on the notes. It is now argued that the ruling was wrong, for the reason that if the payment was made by any one but the deceased the evidence was immaterial, and if made by him the testimony was inadmissible under section 399 of the Code. But the latter objection was not taken at the trial, and must be regarded as waived, since, if attention had been called to it, possibly it might have' been obviated, as, for instance, by showing that the payment was made by a third person for the deceased and with his authority. That objection, therefore, is not now available; and as the evidence may have related to a payment made by the deceased or his agent, and in that event bore directly upon the issue, the objection on the score of immateriality was properly overruled.
Stephen Lockwood, called as a witness by the defendant, testified that he was, and had been, an attorney for over twenty years; that in his business he had had occasion to examine old and new writings, and to examine when they were claimed not to be genuine, and that he had examined the notes, in suit, and the indorsements on them of 13th June, 1858, and 3d January, 1862. lie was then asked: “In your opinion were the indorsements of June thirteenth, upon those notes, written as long ago as they bear date ? ” lie was also asked: “Are the indorsements of 13th June, 1858, and 3d January, 1862, written with the same pen and ink ? ” The defendant also offered to show by the witness that each of the indorsements, in the opinion of the witness, was written at a more recent time than its date, and that they were all written within two years past, judging from the appearance of the writing and ink. The plaintiff’s counsel objected to the questions and offer, separately, on the-ground, with others, that, the witness was not shown to be competent to give an opinion. The objections were sustained, and the defendant excepted. The questions and'offer called for the opinion
Of the other exceptions taken at the trial, it is necessary to notice only one. Mr. Allen, one of the attorneys for the plaintiff, was called as a witness in behalf of'his client, and testified that he prepared the original claim sworn to by the plaintiffs and made a copy. He was asked what he did with the original. The question was objected to as immaterial and irrelevant. The objection was overruled, and the defendant excepted. The witness then answered that he presented it to the defendant at plaintiff’s request, and asked if she would pay the claim, and she refused, saying the notes were forgeries. The evidence was admissible as tending to show that the demand had been duly presented and its payment was unreasonably resisted or neglected by the defendant; facts which the statute requires to be certified, when proved, by the judge or referee before whom the trial is had, with a view to the proper disposition of the question of costs. (2 R. S., 90, § II; Code of Procedure, § 272.) No specific objection was taken to any part of the witness’ answer
Judgment affirmed.