
    HARRISON HOPPER vs. MARGARET BECK, Executrix.
    Appeal from the Court of Common Pleas.
    
      Affirmed.
    
    The appellant sued on five promissory notes executed by the defendant’s testator in his lifetime. The defendant pleaded limitations and the general issue, and the jury returned a verdict for the defendant. P'ive exceptions were taken to the rulings of the trial Court upon the admissibility of evidence and a sixth to its action in granting and rejecting prayers. The appellee moved to dismiss the appeal. Upon this motion, held: Where by the agreement of the parties the time for signing the bills of exceptions in a case is postponed to a period later than three months after the rendition of the judgment, so that the record is not transmitted within three months after the time the appeal was taken, as required by Code, Art. 5, sec. 6, the appeal will not, on that account, be dismissed because such delay was caused by the appellee as well as by the appellant. •
    Upon the exceptions held: (1) A witness called to testify as to the state of an account between certain parties cannot be allowed to refresh his memory by the examination of a copy of the account, in which some of the entries were not made by him. (2) Where the question is as to how much is due by the defendant to the plaintiff, a witness cannot be asked what was the approximate state of the account between them, since such evidence would be a mere conjecture. (3) Where the action is against the executor of one party to a contract, the other party thereto is not a competent witness to testify as to conversations held with the decedent and a third person, concerning the transaction. (4) The bar of the Statute of Limitations cannot be removed by showing merely a recognition by the defendant of some undefined indebtedness, unless the' jury are allowed to determine whether the acknowledgment applied to the indebtedness sued on or not.
    No. 20,
    January term, 1896.
    
      Fred. C. Cook for the appellant.
    S. S. Field for the appellee.
   Opinion by

McSherry, C. J.

Recorded in Liber J. S. F., No. 2, etc., folio 784 of "Opinions Unreported.”  