lots 195 and 204, and Elizabeth, the wife, under the probated will, undoubtedly would have the right to the enjoyment of the rents, issues, and profits from those two lots for life. She attempted much more than this, because she included them in a conveyance made by her in 1864 to an intermediary who conveyed to her new husband, Dallier. It should be constantly borne in mind that the real parties in interest under the paper of June 23, 1885, are not before the court, and are not bound by anything herein. Therefore, even if there were proof with respect to the situation, I doubt whether it would be proper for the court to make a finding upon these proofs in favor of the merchantability of the title and force it upon the defendant. It might well be that proofs submitted between these strangers would show one state of facts while proofs adduced in a suit in which the beneficiaries designated in the paper of June 20, 1855, were parties would show a very different state of facts. However, I am not called upon to decide what should be done in a case in which such proofs were present. They are not present here. Under the circumstances, therefore, it seems to me clear that this court should not force the defendant herein to accept this title. It is not shown to be merchantable in the case at bar. The paper of June 20, 1855, if supported by legal consideration, evidences that which a court of equity will enforce. I purposely do not characterize the paper; that is, I do not hold, because it is not requisite that I should, whether this paper is a will probatable upon the death of both makers, or whether it is a contract which, upon proof of sufficient consideration, will be enforced, or whether it is an instrument of proof evidencing a contract. either or any event, it is sufficient in this suit to affect the merchantibility of the title in question. It is sufficient upon which to found a bona fide claim on behalf of the persons in whose favor it runs, which, if supported by proofs as to consideration, etc., would entitle them to relief. Under these circumstances, I am entirely clear that a court of equity should not hold the title merchantable and force it upon the defendant. In In the brief of the complainant there was a heading without argument or authority that the complainant had good title to the premises by adverse possession. The proofs upon this point are so slight as to be practically negligible, and I took occasion to inquire of counsel for both parties whether they desired to press this contention further, and they both informed me that they did not. I cannot see that there are sufficient proofs in this case to make it worth while to discuss this question. MACKINTOSH v. GIBBS et al. (Supreme Court of New Jersey. Nov. 30, 1909.) 1. BILLS AND NOTES (§ 268*)-TRANSFER-IN DORSEMENT - INDORSER'S CONTRACT-WHAT LAW GOVERNS. A note executed and delivered in 1901 in California, secured by mortgage on land in that state, and nonnegotiable by the local law, was transferred by indorsement in New Jersey after the passage of the negotiable instruments act of April 4, 1902 (P. L. p. 583). Held, that the validity and effect of the contract of the indorsers was determined by that act. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 647-649; Dec. Dig. § 268.*] 2. JUDGMENT (§ 821*)-FOREIGN JUDGMENTMORTGAGE FORECLOSURE-BAR OF ACTION ON INDORSEMENT OF MORTGAGE NOTE. note is distinct from that of the makers; and The contract of indorsers of a negotiable the holder is not precluded from recovery of indorsers who had indorsed the note in New Jersey, by reason of the fact that the note was given in California and secured by mortgage on land in that state, which was subsequently foreclosed, although the California Code enacts that there shall be but one action for the recovery of ed by a mortgage upon real estate in California. any debt or the enforcement of any right secur [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1492-1495; Dec. Dig. § 821.*] 3. EXECUTORS AND ADMINISTRATORS (§ 524*)ACTION BY FOREIGN EXECUTOR-JUDGMENT AS BAR. our courts indorsers upon a promissory note An executor may in that capacity sue in which was indorsed and delivered to his testatrix in New Jersey, although a mortgage on California land securing the note, given by the makers, has been foreclosed and a deficiency judgment obtained in California by an administrator with the will annexed, and the estate has been finally settled in that state. and Administrators, Cent. Dig. §§ 2341, 2342; [Ed. Note.-For other cases, see Executors Dec. Dig. § 24.*] (Syllabus by the Court.) Error to Court of Common Pleas, Monmouth County. Action by James H. Mackintosh, executor of Sarah F. Mackintosh, deceased, against Ella J. Gibbs and another. Judgment for defendants, and plaintiff brings error. Reversed. Argued February term, 1909, before the CHIEF JUSTICE, and SWAYZE, and PARKER, JJ. Patterson & Rhome, for plaintiff in error. John T. Temple, for defendants in error. SWAYZE, J. This was an action brought against the indorsers of a promissory note of which the following is a copy: "3,500.00 San Diego, Cal. October 7th, 1901. "Two years after date, without grace, for value received, I promise to pay to the order of Ella J. Gibbs, at the First National Bank of San Diego, thirty-five hundred dollars, with interest at the rate of 5 per cent. per I will advise a decree in accordance with annum from October 7th, until paid, interest these views. payable semiannually; and if not so paid to be compounded with and bear the same rate | cordance with the requests of the plaintiff of interest as the principal; and should the interest not be paid when due, then the whole sum of principal and interest shall become immediately due and payable at the option of the holder of this note. Principal and interest payable in gold coin of the United States. Should suit be commenced, or an attorney employed to enforce the payment of this note, I agree to pay an additional sum of 6 per cent, on principal and accrued interest as attorney's fees in such suit. "[Int. Rev. Stamp.] "Witness: "Robert F. IIibson. "Foster M. Voorhees. "H. E. Nelles." that the plaintiff was not obliged, in order to recover in this state, to have made the defendants parties to the foreclosure suit in California, and that the plaintiff had a legal right to maintain the suit and recover against the defendants on the ground that their indorsement of the note and the delivery of the same to the plaintiff's intestate in New Jersey constituted an independent valid contract between the defendants and the plaintiff's intestate, and the defendants could be held liable in this state upon the same without regard to the mortgage or foreclosure proceedings, and that the provisions of the California Code referred to did not apply to or bar this suit nor apply to the note or indorsements in question. We think the trial judge fell into error through a failure to consider the exact character of the contract sued upon. That contract was evidenced by the signing of the names of the defendants upon the note at the time of the transfer in this state. Whether or not they intended to become liable for the payment of the note is a matter of no consequence, as their legal liability is determined, not by their intent, but by the effect which the law attributes to their act. That effect is to be determined by the law The note was secured by a mortgage of even date on California lands. In 1902 Mrs. Gibbs assigned the note and mortgage to her husband, Coleman A. Gibbs, the other defendant, in California, for the purpose of enabling him to effect the sale thereof. On May 16, 1903, the two defendants assigned the note and mortgage to Sarah F. Mackintosh, the plaintiff's testatrix, and indorsed the note in blank and delivered the note and mortgage to her in Asbury Park, N. J. On October 7, 1903, the note was presented for payment at the bank where payable and payment refused. On the following day pay-of New Jersey. The cases are collected in ment was again demanded and refused, and the note protested and notice of the protest and demand mailed to each defendant. In 1905 the mortgage was foreclosed in California by the administrator with the will annexed of Sarah F. Mackintosh, to which suit the present defendants were not made parties. There was a deficiency judgment in the foreclosure, and the final account of the administrator with the will annexed was allowed by the California court October 12, 1906, and a decree of distribution made, directing the administrator to distribute the decedent's estate to the plaintiff herein, James H. Mackintosh. In the assignment of the mortgage from the defendants to the plaintiff's testatrix, it was stated that the time of payment of the mortgage had been extended two years from the date when due, but, no notice of this extension was made on the note. The trial judge found as a fact that by the Civil Code of California there can be but one action for the recovery of any debt or the enforcement of any right secured by a mortgage upon real estate in California. He conceived that the plaintiff was barred of any recovery by reason of this provision of the California Code. In his opinion he intimated, also, that the plaintiff was not entitled to recover because he brought this suit in a representative capacity, while under the decree of distribution he was individually the owner of the note and mortgage. He found the facts specially, and did not find generally for the defendants, and it is the judgment on his finding which is presented for review by proper ex 7 Cyc. 836. It is sufficient to refer particularly to what was said by Chief Justice Marshall in Slacum v. Pomery, 6 Cranch, 221, 3 L. Ed. 205, and by the same distinguished court in the later case of Musson v. Lake, 4 How. 262, 278, 11 L. Ed. 967. The same rule has been adopted in this state. In Brownell v. Freese, 35 N. J. Law, 285, 10 Am. Rep. 239, Justice Van Syckel, in dealing with a bill of exchange, said: "The drawer is liable according to the law of the place where the bill is drawn, and each successive indorser is liable according to the law of the place where he indorses; every indorsement being treated as a new and substantive contract." The same doctrine was approved by the Court of Errors and Appeals in Oliphant v. Vannest, 58 N. J. Law, 162, 33 Atl. 382. Since the contract of the defendants was an independent contract, its validity and effect is to be determined, not only by the law of this state, where it was made, but by that law at the time when it was made. It is unnecessary to determine whether such a note was negotiable prior to 1902, since at the time the note was transferred the negotiable instruments act was in force. By section 2 of that act the instrument sued upon was negotiable notwithstanding the fact that it contained provisions for payment with interest payable semiannually, and a provision that, upon default, the whole sum should become immediately due and payable at the option of the holder, and that it was to be paid with an attorney's fee. Section 63 enacts that a person placing his signature upon drawer, or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity. By virtue of these sections the contract was a contract of indorsement. This contract of indorsement was entirely distinct from the contract of the maker to pay the note and from the debt arising against the maker by reason thereof. It is only by virtue of Act March 17, 1855 (P. L. p. 292) § 14, which now appears as section 29 of the practice act (2 Gen. St. 1895, p. 2537), that maker and indorser can be included in a single action. Craft v. Smith, 35 N. J. Law, 307. A moment's reflection will show why this is so. The contracts of the maker and of the indorser are of very different character. That of the maker is an absolute contract to pay the money when due. That of the indorser is (1) a collateral contract of warranty by which, under section 66 of the negotiable instruments act, which is intended to be a codification of the existing law, he warrants that the instrument is genuine and in all respects what it purports to be, that he has a good title to it, that all prior parties had capacity to contract, that the instrument at the time of his indorsement is valid and subsisting; and (2) a contingent contract by which in addition he engages that on due presentment it shall be accepted or paid or both, as the case may be, according to its tenor, and that, if it be dishonored and the necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the holder or to any subsequent indorser who may be compelled to pay it. It is obvious that in neither aspect is this contract of the indorser a debt or a right secured by the mortgage upon real estate given by the maker of the note to secure his liability, and his liability alone, for at the time the mortgage was given the liability of the indorsers of the note had not yet come into existence. It did not even become contingent until May, 1903, nearly two years after the note was given, and did not become a fixed liability until the presentment of the note for payment, its dishonor, and the notice thereof given the next day as the law requires. It is therefore quite clear that the judge was in error in holding that the plaintiff was barred of recovery by reason of any provision of the California Code. It is not even found as a fact, and we doubt if it be a fact, that those defendants could in any way have been made parties to the foreclosure suit in California. of the fact, for whether there had been an extension of the time of payment depended upon an agreement to that effect between the debtor and creditor, and, while the statement by the creditor that he had extended the time of payment might be evidence, it would be nothing more. It is quite possible that a case might arise in which it would not even be evidence, since the holder of a note due on a certain date and secured by mortgage, who had failed to present the note for payment at the bank where payable, would find it to his interest to declare that the time of payment had been extended by agreement. If, however, we accept this statement of the defendants as the equivalent of a finding of fact, they do not escape liability, for it would be inadmissible for them to show that the contract was other than that which appears from the written instrument itself. Johnson v. Ramsey, 43 N. J. Law, 279, 39 Am. Rep. 580; Kling v. Kehoe, 58 N. J. Law, 529, 33 Atl. 946. This rule was cited with approval by the Court of Errors and Appeals in Middleton v. Griffith, 57 N. J. Law, 442, 448, 31 Atl. 405, 51 Am. St. Rep. 617. Section 68 of the negotiable instruments act has not altered it, for that goes no further than to permit evidence to show that indorsers have agreed to be liable in an order different from that in which they indorse. The view taken by the learned trial judge that the action was not maintainable by the plaintiff in his representative capacity is quite untenable. The settlement of the California portion of the estate under the ancillary letters granted to the administrator with the will annexed in that state could not affect either the rights or the liabilities of the executor in New Jersey. The proper decree of the California court was to decree that the balance after paying the claims in that state be sent to the executor in New Jersey for distribution. 3 Williams on Executors (6th Am. Ed.) 1763, 1767, note "m"; Banta v. Moore, 15 N. J. Eq. 97; Neilson v. Russell (Err. & App.) 71 Atl. 286, 19 L. R. A. (N. S.) 887. In fact, the finding of the court in this case was that the California court directed the ancillary administrator to distribute the decedent's estate to the plaintiff herein. this were not so, however, the note was indorsed by the defendant Ella J. Gibbs, the payee, by an unqualified indorsement. All the subsequent indorsements might be stricken out by the plaintiff (Negotiable Instruments Act, § 48), and thereupon the instrument became payable to bearer under section 34. If It is, however, suggested that there may The facts found in this case by the court be a difficulty growing out of the alleged ex- establish the right of the plaintiff to recover tension of the time of payment. The court the unpaid balance of the note, and since the did not find as a fact that the time of pay-case comes before us upon special findings ment had actually been extended, but merely of facts the plaintiff is entitled to enter final that in the assignment of the mortgage it was stated that the time of payment of the mortgage had been extended. Such a state judgment in this court upon having his damages properly assessed in the usual way. This disposes of the case finally upon the in the court below, but not in this court. Lehigh Valley R. R. Co. v. McFarland, 44 N. J. Law, 674. VASSAR et al. v. LANCASTER. (Supreme Court of Rhode Island. Dec. 31, 1909.) 1. NEW TRIAL (§ 163*)-ORDER GRANTINGTAKING EXCEPTIONS-NOTICE OF INTENTION TO PROSECUTE BILL. A notice of intention to prosecute a bill of exceptions cannot take the place of an exception to the court's denial of defendant's motion for a new trial, required to be taken by Court and Practice Act 1905, § 483, providing that exceptions to such ruling may be taken by filing the same with the clerk within seven days after notice of the decision. [Ed. Note. For other cases, see New Trial, Cent. Dig. § 332; Dec. Dig. § 163.*] 2. EXCEPTIONS, BILL OF (§ 55*)-ESTABLISHMENT IN SUPREME COURT-TRUTH. Sheffield, Levy & Harvey, for plaintiffs. Edwards & Angell (Seeber Edwards, of counsel), for defendant. JOHNSON, J. Action for breach of covenant to pay rent and for breach of other covenants under a lease. A trial in the superior court resulted in a verdict for the plaintiff for $522. Within seven days after verdict the defendant filed a motion for a new trial, on the grounds: "(1) That the verdict was against the evidence; (2) that the verdict was against the law; (3) that the presiding justice erred in the reception of certain testimony offered by the plaintiff and objected to by the defendant; (4) that the presiding justice erred in excluding certain testimony offered by the defendant; (5) that the defendant has since the trial of said action discovered new and material evidence, as shown by the affidavits filed with this pe Court and Practice Act 1905, § 494, provides that the truth of exceptions may be es-tition." This motion was heard, and on Septablished before the Supreme Court on petition stating the facts; and Supreme Court rule 13 (62 Atl. ix) declares that every petition for allowance of a bill of exceptions or to determine the correctness of a transcript of testimony shall be verified by affidavit, setting forth the rulings on which the exceptions are based or the grounds of objection and all facts material thereto. Held, that the transcript is not the only proof of its correctness, but that it may be established by other proof. [Ed. Note.-For other cases, see Exceptions, Bill of, Cent. Dig. §§ 90-93; Dec. Dig. § 55.*] 3. EXCEPTIONS, BILL OF (§ 55*)-TRANSCRIPT -DISALLOWANCE. Where certification of a transcript was refused solely because no exception had been taken within seven days after notice of the decision of the motion for a new trial, such ruling did not constitute a finding that the transcript in itself was incorrect. tember 10, 1908, was denied. September 11, 1908, the defendant filed a notice of his intention to prosecute a bill of exceptions; and the time for filing the same and the transcript of the evidence was extended to October 21, 1908, on which date the bill of exceptions and transcript of the evidence were filed. November 7, 1908, the justice who presided at the trial disallowed the bill of ex ceptions, on the ground that no exception had "been taken within seven days of decision." November 20, 1908, the defendant filed a petition in this court, under section 494, Court and Practice Act 1905, to establish the truth of the exceptions stated in said bill of exceptions. The bill of exceptions is as follows: "The [Ed. Note. For other cases, see Exceptions, defendant in the above-entitled action now Bill of, Cent. Dig. §§ 90-93; Dec. Dig. § 55.*] comes and files this his bill of exceptions, 4. EXCEPTIONS, BILL OF ( 55*)-ESTABLISH- and for grounds thereof states: First. The MENT OF EXCEPTIONS-TRANSCRIPT-EVI- defendant excepts to the decision of the suDENCE OF PROCEEDINGS. Though a transcript, when its correctness is finally established, is conclusive evidence of the proceedings had at trial, until the transcript is established, the exceptions may be proved by affidavit, as authorized by Court and Practice Act 1905, § 494, and Supreme Court rule 13 (62 Atl. ix). [Ed. Note. For other cases, see Exceptions, Bill of, Cent. Dig. §§ 90-93; Dec. Dig. § 55.*] 5. APPEAL AND ERROR (§ 691*) -RECORDTRANSCRIPT OF EVIDENCE-REVIEW. Exceptions to the admission and exclusion of evidence cannot be reviewed, without a correct transcript of all the testimony. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2900-2904; Dec. Dig. 8 691.*] Exceptions from Superior Court. Action by Henrietta H. Vassar and others against George A. Lancaster. Petition by defendant to establish the truth of his bill of exceptions in the Supreme Court. Petition dismissed. perior court denying the defendant's motion for a new trial, which said motion was based upon the following grounds: (1) That the verdict was against the evidence; (2) that the verdict was against the law; (3) that the presiding justice erred in the reception and objected to by the defendant; (4) that of certain testimony offered by the plaintiff the presiding justice erred in excluding certain testimony offered by the defendant; (5) that the defendant has since the trial of said action discovered new and material evidence, as shown by the affidavits filed with this petition. Second. The presiding justice erred in allowing the witness Corcoran to answer questions numbered 80, 81, 265, 266, and 267. Third. The presiding justice erred in excluding certain testimony offered by defendant in question 208 to Lancaster." The petition to establish the truth of the exceptions, after stating (1) the bringing of the action; (2) the trial; and (3) the filing of a motion for a new trial and the denial | plaintiff, namely: 15 Pemberton Sq., Room of the same, is as follows: "(4) That on the 803-4, Boston, Mass. Jan. 8, 1907. Mr. Wm. 11th day of September, A. D. 1908, your pe- I. Holmes, Trustee Estate Geo. M. Ricetitioner filed in the office of the clerk of the Dear Sir: I desire to make you the followsuperior court his written notice of inten- ing proposition relative to a lease of the tion to prosecute his bill of exceptions, and coal mine at Portsmouth, R. I.: I will aca motion to have the court fix the time with- cept a lease of the premises in the general in which such exceptions should be filed, to- terms of those heretofore granted on the gether with a transcript of the evidence and following conditions: First. That I am to the rulings thereon referred to, and an or- have six months from date of lease, rent free, der was made by said presiding justice re- in which to pump out the mine. Second. quiring said transcript of evidence and bill That I am to pay $300 per month thereaftof exceptions to be filed in the office of the er for eight months, instead of $500 per clerk of said court on or before the 21st month, as in former lease. Third. That aftday of October, A. D. 1908. (5) That said er fourteen months from date of lease the transcript of evidence and bill of exceptions rent or royalty be at least $500 per month, were filed in said office of the clerk of said as in former lease. If these conditions are court on the 21st day of October, A. D. 1908, satisfactory, I will pay as evidence of good and the presiding justice at said trial has faith $1,000 at signing the paper, this amount refused to allow any of said exceptions. The to be credited against the rent. Yours truly, said petitioner, therefore, within 30 days aft- G. A. Lancaster.' That the justice presiding er the filing of said bill of exceptions in the refused to allow the introduction of said letsuperior court, now comes and files this his ter, and exception was duly noted. That the petition, in compliance with section 494 of above questions to witness Corcoran are the the Court and Practice Act of 1905, and of basis of defendant's second ground of excepthe other acts in amendment thereof or in tion as set forth in his bill, and that the exaddition thereto, and a copy of the excep- clusion of said letter is the basis of his third tions referred to, and asks that the same may ground. That the defendant's first ground be heard and the same proceedings taken of exception is the decision of the justice dethereon as if said exceptions had been duly nying his motion for a new trial. allowed by said justice, and that this court will order the clerk of the superior court to certify and transmit to the clerk of this court all the papers in said cause, including said transcript of evidence and exceptions, and that the defendant may have a hearing before this court upon said exceptions and the transcript of testimony, and a decision of this court sustaining said exceptions and granting him a new trial of said action. George A. Lancaster, by His Attorney, Clark Burdick." The following affidavit is attached to the petition: "Clark Burdick. "Subscribed and sworn to this November 19, 1908. "Parker Braman, Notary Public." As to the first exception, it is plain from the record that no exception was taken to the decision of the justice of the superior court denying the defendant's motion for a new trial, in manner provided by section 483, Court and Practice Act 1905. The defendant contends that his notice of intention to prosecute a bill of exceptions, filed September 11, 1909, should be construed as an exception to said decision. This notice, however, was necessary in order to prosecute his bill of exceptions at all, not only to the denial of his motion for a new trial, but also tothe admission and rejection of evidence at the trial. We do not think that it can be made to take the place of the exception in such case required to be taken as provided in section 483, Court and Practice Act 1905. "I, Clark Burdick, hereby make affidavit and say: That I was the counsel for the defendant at the trial of the foregoing entitled action. That at said trial the plaintiff offered as a witness a man by the name of Corcoran, and he was asked by counsel for the plaintiff the following questions: 'Now, how much would it cost to pump out those mines, so that the pumps could be used? To which question objection was When we come to the consideration of the made on the ground that the witness was second and third exceptions sought to be esnot qualified to answer, and which said ques-tablished, it is to be noted that the transcript tion the witness was permitted to answer, of evidence was disallowed upon the same and exception was duly noted. That at said trial said witness Corcoran was asked the following question: 'Do you know what they (the pumps) cost when they were bought? To which question objection was made on the ground that it was improper and immaterial, and which said question the witness was permitted to answer, and exception was duly noted. That at said trial the defendant offered in evidence the following letter, date as the bill of exceptions by the justicewho presided at the trial; the justice stating specifically in his certificate that the disallowance was "for reasons stated on the bill of exceptions." Although the question has not been raised by the parties, still, as the jurisdiction of this court in the matter depends upon the regularity of the steps taken in bringing the exceptions here, it is necessary to consider it. |