seem to think, indicating that, if the foreclosure be for an installment of principal or interest, the notice must contain something in addition to the statutory requirements. Certainly the copy of the notice of foreclosure which counsel have appended to their brief, as a guide, and with the assurance that it was prepared in strict conformity with the provisions of the sections last mentioned, contains nothing more than what is requir ed by the statute, except the information that the mortgage being foreclosed contained a condition authorizing the mortgagee to declare the whole amount of principal and interest secured thereby to be due in case of a failure to pay an installment of interest at maturity, and, further, that the mortgagee had, as authorized, elected to declare, and did declare, the entire amount of principal and interest due, for the purposes of foreclosure. The mortgage in hand contained no such condition, or, at least, we are not to presume that it did. The premises involved consisted of a single tract of land, and the statute required a sale to the highest bidder. After paying the amount actually due on the debt at the time of sale, and the costs of sale, the balance of the proceeds was applicable to the payment of the mortgage debt. As the residue was less than the debt, there was no surplus. Judgment affirmed.

RED RIVER VALLEY INV. CO. v. COLE et. al.

(Supreme Court of Minnesota. Nov. 20, 1895.)
NEGOTIABLE INSTRUMENTS-ACTION BY INDORSEE
-EVIDENCE-INSTRUCTIONS-WAIVER
OF OBJECTIONS.

The indorsee of a promissory note payable to order brought an action on it against the maker, and alleged in his complaint that the note was "sold, assigned, and delivered" to him, but did not allege that it was "indorsed" to him. Held, on the trial the indorsement was admissible under the pleadings to prove a transfer of the note to him, but whether it was admissible for the purpose of giving plaintiff the rights of a bona fide indorsee for value before maturity as against defenses available as against the payee, quære. But held, if it was not admissible for that purpose, defendant waived the objection by failing to object to those parts of the charge in which the judge charged that plaintiff had the rights of such a bona fide indorsee.

(Syllabus by the Court.)

Appeal from district court, Otter Tail county; L. L. Baxter, Judge.

Action by the Red River Valley Investment Company against William H. Cole and others. From an order denying a new trial after verdict for plaintiff, defendants appeal. Affirmed.

E. E. Corliss and Mason & Hilton, for appellants. George E. Perley, J. E. Greene, and Houpt & Baxter, for respondent.

CANTY, J. Plaintiff brought this action on two negotiable promissory notes made by defendants to the order of Sawyer and Wilkins,

who, it is alleged in the complaint, "sold, assigned, transferred, and delivered" the notes for a valuable consideration, before maturity, to plaintiff, but it does not allege that the notes were "indorsed" to plaintiff. Defendants, in their answer, admitted the making of the notes, denied the transfer of the same to plaintiff, and set up certain facts which they claim would constitute a good defense to the notes as between them and Sawyer and Wilkins. On the trial plaintiff produced the notes with the indorsements of Sawyer and Wilkins thereon, and offered them in evidence. Defendants objected, "not to the notes, but to the indorsements upon the back" of the same, on the ground that such indorsements were not admissible under the pleadings. The objection was overruled, and they excepted. Thereupon plaintiff moved for leave to amend the complaint by inserting therein among the words above quoted the word "indorsed," but the motion was denied by the court. At the close of the trial the judge charged the jury that if the plaintiff "bought these notes in good faith, paid his money for them, and that the transaction was free from any fraudulent purpose, your verdict ought to be for plaintiff," and that, "in order to find a verdict for defendants, you would have to be satisfied-First, of fraud in the inception of the notes; and, second, knowledge of this fraud in the purchase of the notes by the plaintiff." No exception was taken to the charge. The jury returned a verdict for plaintiff for the amount claimed, and from an order denying their motion for a new trial, defendants appeal.

It is urged by appellants that it was error to receive the indorsements of the notes in evidence. No such indorsements were pleaded, and it is contended that under the pleadings the plaintiff could not claim the protection of a bona fide indorsee for value before maturity as against their defense to the notes. Conceding, without deciding, that this is true, it does not follow that the indorsements were not admissible for the purpose merely of proving a transfer of the notes to plaintiff as alleged in the complaint. The possession by a third party of a negotiable promissory note payable to order, but not indorsed by the payee, is not evidence of ownership by such third party. Van Eman v. Stanchfield, 13 Minn. 75 (Gil. 70). Then, instead of proving such a transfer by oral evidence, plaintiff could prove it by the indorsements of the payee on the notes. So that for this purpose at least the indorsements were admissible in evidence under the pleadings. Whether, under the pleadings, plaintiff could, by these indorsements, invoke protection from the defense offered, is another question. The indorsements were properly in evidence for the one purpose, and, if defendants desired to object to their use for the other purpose, they should have objected to that part of the charge above quoted, which they wholly failed to do. For the want of such an exception, the question cannot be raised in this court. Order affirmed.

FLETCHER v. STAPLES et al., Defendants, and BROADWAY INS. CO., Garnishee. (Supreme Court of Minnesota. Nov. 20, 1895.) GARNISHMENT-PROPERTY SUBJECT TO- Burden

OF PROOF.

The burden is on the defendant debtor to show that funds belonging to him in the hands of the garnishee are exempt from seizure for the payment of his debts. Held, in this case the defendant has failed to show such exemption.

(Syllabus by the Court.)

Appeal from municipal court of Duluth; Roger S. Powell, Judge.

Action by Laura E. Fletcher against James Staples and Emma Staples, defendants, and the Broadway Insurance Company, garnishee. From a judgment for plaintiff against the garnishee, defendants appeal. Affirmed.

Stanford & Arbury, for appellants. Jaques & Hudson, for respondent.

CANTY, J. In an action to recover an indebtedness due from defendant to plaintiff, garnishment proceedings were instituted against said garnishee. The garnishee disclosed that it was indebted to defendant in the sum of $437.50 by reason of the fact that it had insured plaintiff against loss by fire on household goods, that there was a loss by fire, and the parties had adjusted the garnishee's liability for such loss at that sum. The insurance policy was introduced, and made a part of the disclosure, and gives a description of the property so insured, as follows: "Household and kitchen furniture, useful and ornamental carpets, beds, bedding, linen, family wearing apparel and materials for same, trunks, traveling bags, umbrellas, canes, parasols, plate and plated ware, crockery and glassware, book cases, printed books, magazines, periodicals, works of art, music, mirrors, photographs, pictures, paintings, engravings, drawings and their frames (at not exceeding cost), bric-a-brac, articles of virtu, sewing machines, musical instruments, clocks, watches, and jewelry (in use), statuary, casts, optical instruments, tools and implements, firearms, fishing. tackle, scientific apparatus and sporting goods, family stores and supplies, and other articles not more hazardous, while contained in the one-story frame building and additions thereto, situate," etc. Thereupon defendant moved that the garnishee be discharged on the ground that the money so disclosed as due him from said garnishee is exempt from execution, and that he claims such exemption. In support of the motion he filed his affidavit, in which he states: "This affiant suffered a loss by fire of his household goods, wearing apparel, etc. That at the time of said fire this affiant was insured • in the above-named garnishee upon the said household goods and family wearing apparel in the sum of $500. That the money so to be paid by

said insurance company to affiant is claimed by this affiant * as the property of this affiant exempt from execution, attachment, or other process issued from any court in this state." This is all of the affidavit which has any tendency to show that the property insured was exempt at the time of the fire.

Plaintiff filed a counter affidavit, in which it is stated that, at the time of the fire, defendant carried insurance to the amount of $2,000 on the property; that this insurance was issued by plaintiff and two other insurance companies; and that the loss was jointly adjusted by defendant and the three companies at the sum of $1,750, of which amount one of the other companies, since the service of the garnishee summons herein, had paid defendant the sum of $875, and that plaintiff and the other company still owed him the balance, to wit, $437.50 each. After the entry of judgment against defendant in the main action, plaintiff moved for judgment against the garnishee, and thereupon the parties stipulated that the foregoing affidavits might, on said motion, be considered by the court as a part of the disclosure of the garnishee, and as evidence taken on such disclosure, subject to the objection that such affidavits are irrelevant and immaterial. The court ordered judg ment for the plaintiff against the garnishee, and from the judgment entered thereon defendant appeals.

The contention of the defendant is that the property in question was exempt from execution, and that, under the statute, the insurance money due on the loss is also exempt. Subdivision 5, § 5459, Gen. St. 1894, specifying what property shall be exempt from execution, reads as follows: "All wearing apparel of the debtor and his family; all beds, bedsteads, and bedding, kept and used by the debtor and his family; all stoves and appendages put up or kept for the use of the debtor and his family; all cooking utensils; and all other household furniture not herein enumerated, not exceeding five hundred dollars in value; also all moneys arising from insurance of any property exempted from sale on execution, when such property has been destroyed by fire." It is not necessary here to decide whether all the property exempt under this subdivision is limited so that its value shall not exceed $500, or whether it is only that included in the term "all other property not herein enumerated" which is so limited. are of the opinion that under either interpretation of this subdivision defendant has not shown that any of the property in question was exempt. The burden is on the debtor to show that the property seized or levied upon for the payment of the debt is exempt. It nowhere appears that the prop erty in question was "kept and used by the debtor and his family" or "kept for" their use. For aught that appears, the property

We

In question may be a part of the stock of a furniture store, or of a second-hand store, or of an hotel or furnished flats in which his family did not reside. Neither does it appear that the loss suffered by the fire was a total loss, or that he did not have more household goods left after the fire than were exempted by law. Again, the insurance policy enumerates no particular article or number of articles, but many classes of articles. None of the articles included in several of these classes would be exempt at all, and as to some others of the classes the articles exempt would be limited in value whichever interpretation is given to said subdivision 5. But the numbers, kinds, or values of the articles destroyed or injured by the fire, for which the insurance is to be paid, nowhere appears. We have no means of knowing what portion of the fund, if any, is exempt, and what portion is not. Then defendant has failed to show that any part of the fund in the garnishee's hands was exempt. By reason of the stipulation aforesaid, neither party is in a position to question the regularity of the practice adopted of trying this issue on affidavits. This disposes of the case. Judgment affirmed.

D. M. OSBORNE & CO. v. HEUER et al. (Supreme Court of Minnesota. Nov. 22, 1895.) LIMITATION OF ACTIONS-ACKNOWLEDGMENT.

O. having a judgment against H. and another. H. and a third person executed to O. a promissory note, payable at a future day, for the amount of the judgment: the note expressly stating that it was given for the purpose of securing an extension of time for the payment of the judgment. Held, that this constituted an acknowledgment and new promise on the part of H.. which, as to him, took the judgment, as : debt, out of the statute of limitations.

(Syllabus by the Court.)

Appeal from district court, Blue Earth county; Francis Cadwell, Judge.

Action by D. M. Osborne & Co. against Fritz Heuer and others. There was judg ment for defendants, and plaintiff appeals. Reversed.

Taylor, Woodard & Brett, for appellant. Dalzell & Young, for respondents.

MITCHELL, J. This action was on a promissory note executed by the defendants to the plaintiff. The short facts are as follows: On February 16, 1884, the plaintiff obtained a judgment against the defendant

Holzkamp and one Heuer. On January 2, 1893, the judgment being unpaid, Holzkamp (one of the judgment debtors) and Dahms executed to plaintiff the note in suit, for the amount of the judgment, payable December 1, 1893. The note expressly stated that “it was given as collateral to judgment of date February 16, 1884, against Fritz Heuer and Henry Holzkamp, in favor of D. M. Osborne & Co., and is given for the purpose of securing and getting extension of time on account of judgment." This action on the note was commenced prior to February 16, 1894, but was not tried until June, 1894. The defense set up was that defendants executed the note in payment of the judgment, and that, in consideration thereof, plaintiff agreed to satisfy the judgment of record, but had failed and neglected to do so. Defendants' contention also was that the statement as to the purpose for which the note was given was no part of it, and was not written on it when they executed it. Aside from testimony showing that this statement was part of the note when executed, the plaintiff offered no evidence except the note itself. When plaintiff rested, the court, on motion of the defendants, dismissed the action, on the ground, as stated in the record, that the note was given as collateral to the judgment, and, inasmuch as the judgment had ceased to exist" (meaning, we assume, that it was barred by the statute of limitations), the plaintiff could not recover on the collateral. The correctness of this ruling is the only question presented by this appeal.

The court seems to have assumed that the note was simply collateral security for the payment of the judgment. Whether this was correct, or whether it operated as conditional payment, and a suspension of the debt until the maturity of the note, we need not inquire, for the court was clearly in error in holding that the judgment was barred by the statute of limitations. The giving of the note in question was clearly an acknowledgment and a new promise on the part of Holzkamp, which took the case out of the operation of the statute as to him. The lien of the judgment on real estate, if any, and the right to issue execution on it, may have ceased by reason of the lapse of 10 years from its rendition; but the judgment remained a subsisting debt against Holzkamp, upon which an action might be brought. Judgment reversed, and new trial ordered.