know positively how many I did have at that time. I couldn't tell when a single one of these notes was paid exactly. "Q. Can you tell and be sure of it within three months? “A. I think I can. "Q. Which one? "Plaintiff's counsel: I object to this as immaterial, as to whether he knows when they were paid. They can't test his memory upon something that is immaterial. "The Court: I will sustain the objection. tion for defendant.) (Excep "Defendant's counsel: They brought this question of these notes in here. "The Court: Does that make any difference? "Defendant's counsel: Because they brought it in they can't say it is immaterial when I cross-examine upon the same matter. Because they brought The rule of evidence (Exception for de "The Court: Yes; they can. it in does not make it material. is whether a thing is material. fendant.) "Defendant's counsel: Having opened the door, can they close it themselves? "The Court: No; the court closes it on the ground it is immaterial. (Exception for defendant.)" Further in the cross-examination this witness had testified to a conversation with his brother-in-law, Walter S. Stuible, in which he denied having asked Stuible whether he thought the signature of the note was defendant's, and stated that he perhaps told him, when he showed him this note, that he did not want him to tell that he had those notes against John. The following question was asked by defendant's counsel: "Q. The fact that you had a judgment against you unsatisfied didn't have anything to do with your wanting to keep that note a secret, did it? (Objected to by plaintiff's counsel as incompetent, immaterial, and irrelevant, and assuming facts not proven.) "The Court: I will sustain the objection. (Exception for defendant.) "Q. Is it or is it not a fact that at that very time you had a judgment against you which was unsatisfied in the circuit court for the county of Livingston? "Plaintiff's counsel: I object to it as incompetent, immaterial, and irrelevant. (Objection sustained by the court, and exception for defendant.) * * * "Q. Do you or do you not admit that you told him [Stuible] not to say anything about this $500 note? "Plaintiff's counsel: I object to it as immaterial. "The Court: Objection sustained. (Exception for defendant.) * * * "Q. Did you ever tell any one else besides Walter Stuible that you had this note for $500 previous to the time you started the suit? "Plaintiff's counsel: I object to it as immaterial. "The Court: Objection sustained. (Exception for defendant.)" James W. Neal had testified on direct examination that at a subsequent time he and his brother John had some trouble, and that at John's house the witness had said to John, in the presence of the latter's wife: "All I ask of you is to pay me that note and what you owe me, and I will never darken your doors." Anna Belle Neal, defendant's wife, was called upon the defense, and she was asked this question with reference to that conversation: "Q. Was anything said at that time about any note? "A. Not a word. "Plaintiff's counsel: I object to that and ask to have it stricken out as leading. "The Court: Yes. "Defendant's counsel: It is a denial of what has been testified to by him [James]. "The Court: It may be stricken out for the present. (Exception for defendant.) The testimony of James W. Neal as to the making of the note was contradicted by the defendant, his wife, and his son. Anna Belle Neal testified on direct examination with reference to the note as follows: "I have seen that paper before. The handwriting of the written portion looks like mine. I remember writing it. The written portion except the signature. Mr. James Neal asked me if I would draw up two $500 notes for his boy. He said he wanted two $500 notes drawn up for his boy, Thane, blank, just the body drawn up for his boy ready for him to sign. I told him I would, and he says, John has got a bank note book, hasn't he?' I says, 'Yes.' He said, 'He wouldn't care if you took them out of there, would he?' I said I didn't think he would. So I went and got the book and drawed up two $500 notes for him, just the body of the notes. "Q. What, if anything, did he say to you about his son, Thane, owing him at that time? "A. He said he owed him $1,000; he had $1,000 note against his boy. He said his boy promised him he would make the $1,000 note good, and he wanted the $1,000 note split in two so it would make them smaller. I never drew up any other $500 note or notes and gave it to anybody payable to James Neal, or bearer. Exhibit A looks like the note that I drew up. It was about that time. At the time I drew up this note, Exhibit A, and the other like it, my husband was on the farm some place, I think. He was not at the house or in the room. Mr. James Neal and my boy and I was in the room at the time I wrote up these two $500 notes. My boy is 14 years old. I never drew up a $500 note in the presence of myself, my husband, and my boy, and James Neal, and my husband sign it there in our presence. I never knew of my husband signing and never saw him sign a $500 note payable to the order of James Neal, or bearer. I do not know who wrote the signature on Exhibit A. I never saw this note with the signature on until you showed it to me Saturday. At the time I gave it to James there was no signature on it." On rebuttal plaintiff called as a witness Thane Neal and asked him the following question: "Q. Mr. Neal, there has been some testimony offered that at the time of the drawing up of this paper that your father said that you were owing him $1,000, and he wanted two $500 notes. You may state as a matter of fact whether, on June 20, 1911, you were owing your father anything?" "A. I was not.” In the cross-examination of James Neal he had been asked by defendant's counsel whether he did not try to trade Thane Neal's note to one Otto Steinacker for an automobile, and he denied in the following language: "I did not try to trade this note against Thane to Mr. Steinacker for an automobile. I did not show it to Mr. Steinacker and ask him if he would take that note in payment or exchange for an automobile. I didn't show this note to John and his wife as late as the month of June, 1911." Defendant's counsel offered to show that James Neal did have the note in June, 1911, against his son Thane and offered to trade it to Steinacker for an automobile. Otto Steinacker was called as a witness, and he was interrogated upon that subject. This testimony was objected to by plaintiff's counsel as incompetent and immaterial, and the objection was sustained by the court. The further question was asked by defendant's counsel: "You may state whether or not James Neal at that time showed you any note? "Plaintiff's counsel: I object to it as incompetent, immaterial, and irrelevant. "The Court: The objection will be sustained. (Exception for defendant.)" Defendant's counsel also sought to show by defendant that in the month of June, 1911, he saw this $1,000 note of Thane Neal's in the possession of James W. Neal at defendant's house. This evidence was objected to on the ground that the same was immaterial, and irrelevant, and collateral, and the objection was sustained, to which ruling defendant's counsel excepted. Upon the trial defendant's counsel sought to impeach the general reputation of James W. Neal for truth and veracity. One John Frye was called as a witness for that purpose. He was asked the general questions: "Do you know what the reputation, the general reputation, of James Neal is in the vicinity for truth and veracity? Do you know what it is? Yes or no to that question. "A. Well, I know so much what I heard from other folks of course. "Q. Was it good or bad? "A. Well, according to how you look at it. "Q. Which is it? "A. Well, I guess it was bad enough." On cross-examination he testified that he had heard Mr. Hal Lewis say that his reputation for truth and veracity was bad, and that Mr. Lewis had been dead about four years. "Plaintiff's counsel: More than that, ain't it? Ain't it nearly twelve years that Mr. Lewis died? What? "A. Mr. Lewis died, I guess, about four or five years ago. "Plaintiff's counsel: I move to strike that statement out, what he heard a dead man say who has been dead five years. "Defendant's counsel: I object to it. "The Court: It may be stricken out. (Exception for defendant.)" James Atherton was also called as an impeaching witness and testified that the general reputation of James W. Neal was bad. On cross-examination he was interrogated as to whom he had heard speak of his reputation: "A. Claud Badgero down to Byron, another man down there; I can't remember his name. "Q. Claud Bradley? "A. Badgero, yes; and many others I don't just call to mind just now. |