SCOTT, J. This action was commenced in the superior court of Pierce county by the Tacoma Mill Company against E. D. Sherwood and John B. Ault, to recover the amount claimed to be due upon two promissory notes, each for $1,297 and a few cents. Both de fendants appeared by H. G. Munns, as attorney, and filed a general demurrer to the complaint. At the time of filing the demurrer said defendants moved for a change of venue to Snohomish county, which was granted. The demurrer was overruled, and the defendant Sherwood filed no answer. Defendant Ault answered, and the cause proceeded to trial as against him. A verdict and judgment being rendered in his favor, plaintiff appealed. The respondent moves to strike the statement of facts, and to dismiss the appeal, on the ground of failure to serve the notice of appeal and notice to settle the statement. It is admitted that due service was made on said H. G. Munns, but it is contended that Munns only appeared for the defendants in the superior court of Pierce county, and that after the cause was transferred to Snohomish county he was no longer an attorney therein. It does not appear that any substi tution of attorneys was made, and said Munns continued to be an attorney of record for defendants. In view of this, a proper service was made, and the motion is denied. It appears that the defendant Sherwood was conducting a logging business in Snohomish county; that he was indebted to defendant Ault in the sum of $3,500; that he executed a chattel mortgage to Ault upon all of his logs, in the sum of $7,000, to secure the indebtedness aforesaid, and such further advances as Ault might make to assist Sher wood in getting his logs to market, which logs the Tacoma Mill Company was buying. Ault being unable to furnish any more money, Sherwood applied to the Tacoma Mill Company therefor, and was informed that they would furnish him the money applied for if Ault would execute the notes with him. Thereupon the two notes in question were prepared, signed by Sherwood, and sent by the Tacoma Mill Company to Ault, who also signed them, immediately under Sherwood's name, and returned them by mail to the plaintiff. At the time the notes were executed, Sherwood was indebted to the plain tiff in the sum of $1,344 and some cents, and $600 in money was thereafter sent by the plaintiff to Ault, and Sherwood was credited with the sum of $650 for supplies to be furnished in the future, the whole making up the amount and consideration of the notes. Two defenses were set up by the defendant Ault to the notes in question. The first one was that he executed the notes under a parol understanding or agreement that he was not to be liable thereon, but that the same were executed by him for the purpose of allowing the plaintiff to come in under the mortgage previously given by Sherwood to Ault, and that, according to such understanding, he was to be paid first out of the proceeds of the logs. This testimony was admitted over the objection of the plaintiff. It is contended that the same was incompetent on the ground that parol testimony was inadmissible to vary the ferms of the written instruments, and we are of the opinion that the point is well taken. A great many authorities have been submitted by the respondent as supporting his contention, but we do not think any of them go to the extent claimed. The exe cution of the notes was admitted by Ault, and the consideration therefor was clearly proved. Ault admitted having personally received the $600 in money from the plaintift on these notes after their execution, although he claims that he received and disbursed it for Sherwood's benefit. The purport of this defense was to show that Ault was not to be liable upon the notes in any event, and the effect was to render his signature thereto of no value whatever. The law will not per mit the maker of a note, where there is a consideration, to show an oral agreement that he was not to be liable at all on the note. It has been frequently held that a person signing a note on its face may show that he signed it as a surety, and not as a principal, but none of the cases go so far as to hold that he can show he was not to be liable in any wise. The next defense was that Ault was an indorser on the notes; that they were not presented for payment, and notice given to him as an indorser; and that, therefore, his liability was extinguished. It appears that at the time he transmitted the notes to the plaintiff he inclosed therewith a letter stating that he had "indorsed them." He claims that in consequence thereof he can only be held, if at all, as an indorser. No reason is offered for not writing his name upon the back of the notes, instead of signing them as a maker. He does not claim that he was misled in any way in executing the notes, or that he misunderstood the apparent effect thereof. In fact, it appears that he was an attorney at law. He does not even claim that he intended to sign the notes differently than he did sign them, but he contends that the notes and the letter in question should | legal sense belongs to, or is included within be construed together, as one instrument, and that the effect was to render him liable only as an indorser. If the usual and technical meaning is to be given to the word "indorser," in this instance, it is apparent that the letter was in direct conflict with the notes, and the question is, which should govern? It is not difficult of solution, for Ault himself was responsible for the conflict, and, It seems, carelessly so, if he only intended to be held as an indorser, and the notes and letter should be most strongly construed against him. It is true, the letter transmitting the notes said that he had indorsed them, but it appeared just as plainly by the notes that he had signed them as a maker. He placed his name upon the face of the notes intentionally, and delivered them as a present contract; and the plaintiff was justified in receiving the notes, and in holding Ault as a maker, under the circumstances. In fact, it would appear as though the word "indorsed" had been used in the letter inadvertently, or in the sense of having signed them, rather than in its strict technical sense. It is contended that, independent of this, Ault could show the character in which he executed the notes, and could show that, although he signed upon the face of the notes, he did so as an indorser only. Much has been written upon this subject, and it would be an interminable as well as practically useless task to undertake to review the numerous cases. A majority of the courts have held that the maker of a joint and several promissory note may show by parol testimony whether he signed the note as a principal or as a surety, with knowledge of the payee. The reason for this is well stated in the case of Hubbard v. Guerney, 64 N. Y. the terms or legal effect of, the contract." It has also been held, in suits between indorsers upon a note, that it may be shown that their liability is a joint instead of a succeeding one; but this was upon the ground that the contract, in such case, is one implied by law, and that it was not in violation of the rule as to admitting parol testimony to vary a written instrument. But none of these cases sustain the proposition contended for here. The liability assumed by a surety upon a note is essentially different from that assumed by an indorser. The surety is liable the same as the principal. It is true, the payee may not enter into a subsequent contract with the principal of the note, extending the time of payment, etc., without the surety's consent, and still hold him. But as to the indorser the situation is entirely different. Upon the maturity of the note the holder is called upon to take some action, in case of nonpayment, to maintain his claim against the indorser; and, if proof was to be admitted that a person signing a note as a maker was in fact only an indorser, it would be a plain violation of the rule as to admitting proof of a contemporaneous parol agree ment to vary the terms of a written instrument. No case has been called to our attention where any court has held that the maker of a note may show by such testimony that he was simply to be held as an indorser. In support of the respondent's contention that he should only be held as an indorser, it was claimed that he signed the notes after their delivery to the plaintiff. We do not think this is sustained by the proofs, as it substantially appears from his own testimony that the notes had not been delivered, but had been previously signed by Sherwood, and left with the plaintiff, for the plaintiff to transmit to Ault. This was done, and after Ault had signed and returned the notes the remainder of the consideration, above the existing indebtedness of Sherwood to the plaintiff, was paid. And, under the weight of the authorities, a person writing his name upon the back of a note before delivery will be held as guarantor or maker, and not as indorser. The appellant has requested, in case its contentions in the premises are sustained, that the cause be remanded, with. instructions to enter up a judgment in its favor upon the notes. No objection was made thereto by the respondent. There seems to be no controversy as to the facts, which were properly admissible in evidence, and therefore the request will be granted. The judgment is reversed, and the cause remanded, with instructions to enter a judgment in favor of the plaintiff against the defendants for the amount due upon the notes, and for the attorney's fee, to be fixed as stipulated. HOYT, ANDERS, and GORDON, JJ., con cur. (5 Wyo. 102) PEABODY v. HUTTON. Supreme Court of Wyoming. April 4, 1895.) EXECUTORS AND ADMINISTRATORS-CLAIMS AGAINST ESTATE. The invalidity of an order of the probate court transferring a decedent's property to an administrator with the will annexed, upon his giving bond to pay the debts of the estate, does not entitle a creditor thereof to have a portion of the property applied to the discharge of his judgment against the administrator, except in due course of administration. On rehearing. Motion denied. CONAWAY, J. Plaintiff in error still contends that the judgment against George L. Huttor, to satisfy which he seeks to subject the property in controversy to sale upon execution, is a judgment against George L. Hutton, as administrator of the estate of Rowena H. Hutton, deceased; also, that the order of the probate court transferring this property to George L. Hutton, upon his executing a bond to pay the debts of the estate, is void. If this all be true, it results that there has been no administration of the estate, and no ascertainment of its assets and liabilities. It does not entitle plaintiff in error to have the property in controversy, or any portion of it, applied to the discharge of his claim, in whole or in part, except in due course of administration. Rehearing denied. ATTORNEY AND CLIENT PURCHASE OF ADVERSE INTEREST-PLEA OF LIMITATIONS-TIME FOR FILING-SECONDARY EVIDENCE-RECORD Of Deed. 1. An application, a year and a half after the issues in the case were made up, to file an amended answer setting up the statute of limitations, was properly refused. 2. A stockholder of a corporation, while acting as its attorney, purchased an adverse interest in its property sold at a sheriff's sale, and sold to others undivided interests in the property so purchased, and afterwards brought suit and obtained judgment for services as attorney during the period covered by such adverse transactions. Held, that a court would be warranted in rejecting and disregarding his claim of title, as being a fraud on his employer. 3. Gen. St. § 217, providing that unacknowledged deeds may be read in evidence if their execution be otherwise proved, an unrecorded deed given by a foreign corporation may be introduced upon proof of its execution by the corporate charter and official acts and resolutions. 4. When a deed is in the custody of a foreign court, from which it cannot be taken, the record of the deed is admissible. Appeal from district court, Lake county. Action by trustees against the Olathe Silver Mining Company, Limited, and others to foreclose a deed of trust. From a judgment for plaintiffs, defendants other than said company appeal. Affirmed. Appellants were defendants below,-a suit in equity, brought by trustees to foreclose a deed of trust upon 40 acres of mining land in the county of Lake, to secure payment of debenture bonds for £25,000, issued in England. In May, 1881, the defendant the Olathe Silver Mining Company, Limited, was organized in London under the joint-stock company acts of England of 1860 to 1880. About the middle of July, 1881, the company purchased from one George Berry the 40 acres of mines above mentioned for £100,000 sterling, £50,000 of which was to be paid in cash and £50,000 in shares of the company. Berry conveyed the property by deed The company paid of the purchase price 50,000 shares of the capital stock and £31,140 cash, leaving a balance due Berry of £18.860. By the articles of association the company was authorized to borrow money, issue debenture bonds in payment, and secure the same by mortgage upon its property. The sum of £18,860, due and owing to Berry, remaining unpaid, on the 17th of July, 1882, Berry agreed to take 1,886 mortgage debenture bonds of £10 each in full satisfaction and discharge of his debt. On the 24th of July, 1882, the board of directors of the company met, and by a resolution of that date concluded to issue debenture bonds to the amount of £25,000, secured by mortgage upon the property of the company above mentioned, of which amount Berry was to receive bonds to the value of £18.860, and the proceeds of the remaining bonds, amounting to £6,140, were to be sold, or used for obtaining money for development and working capital. A mortgage of the 40 acres of mineral land in Lake county was executed to secure the £25,000 issue of bonds. Shortly after its execution, the deed of conveyance from Berry to the company was recorded in Lake county, in this state, and on the 21st of October, 1882, the deed of trust or mortgage was filed for record in the same county. The bonds of Berry were delivered to and received by him. Of the remaining bonds, 218 were sold for cash at par value, and 110 were deposited with creditors as security; the total number of bonds issued being 2,214 of £10 each, drawing interest at 8 per cent. per annum. Of the bonds issued by the company 2,500 of £10 each had six coupons attached, each for the payment of one-half year's interest. Thomas Eyre Foakes, Herman Carl Schultz, and Theodore H. Lowe were made trustees in the deed of trust. On November 19, 1885, Schultz died, and Harold Carter was appointed to succeed him. On May 20, 1886, Foakes resigned, and Thomas A. Masey was appointed his successor; and before the bringing of this suit Masey resigned, and John Gaskell was appointed his successor. The number of bonds held by the plaintiffs at the time of bringing suit aggregated 1,257 of £10 each, Defend amounting to £12,570, interest upon them, I was amended in the same manner. ant Owers also alleged in his answer that in Joseph W. Taylor, Harvey Riddell, and J. M. Maxwell, for appellants. Chas. C. Parsons and F. L. Baldwin, for appellees. REED, J. Although the finding of the court was that Owers was the owner of the undivided one-fourth and Manning and Scott each owners of one-eighth, such finding was harmless, as the court further found such interests were subject to the lien of the deed of trust; but we are at a loss to know upon what the court based its decree of such ownership. It was alleged in the pleadings, and the interest of Owers stated in his affidavit filed in support of his motion to amend the answer, but no proof was offered in support of or to establish any title or lien in any of the three defendants who attempted to contest plaintiffs' suit; nor was any proof offered to establish the claim of Owers that he was a stockholder. Consequently, as far as they were concerned, the result was equivalent to a default. The appearance of Owers for the defendant mining company was at least questionable. No authority was shown. It was stated in his affidavit that he was duly appointed, in 1883, as the attorney, but the officers, by "conspiracy and collusion," claimed such relation or authority had been revoked; but at what time is not stated. He afterwards asked to be allowed to defend for the company, as its attorney, by reason of his being a stockholder; and that he was a stockholder was never proved, nor the motion granted. As he, in the year 1884, as alleged, commenced to assert title through a judgment and sale of the property, and shortly after obtained a judgment for $2,000 against his client, which he asserted as a lien, it would seem that, if the authority had not been revoked by the company, his own acts of antagonism were sufficient to sever the relation. His acts were so inimical to the rights and interests of his clients as to conclusive ly show the ending of the relation, and his knowledge and acquiescence. And in his affidavit, filed July 30, 1891, he alleges that at the time of filing the answers of himself, Manning, and Scott,-as late as January, 1890,-he was ignorant of the default of the company in payment of interest, and the voluntary dissolution of the company. In the conduct and disposition of this suit his interests were so opposed to his alleged client, the mining company, that his own defense and that of the company were incompatible. Had the attention of the court been called to it, or his authority to appear called for, it must have resulted in his answer for the company being stricken out, and a default taken against the company. As it was, his relation to the company being such as to preclude his appearance to represent it, and neither he nor his associated defendants having shown any interest in the property in controversy, the finding and decree must have gone as it did as a matter of course. Except for the finding of the court that the parties had interests in fee, appellants would be regarded as volunteers in the litigation, without any legal standing in this court upon appeal. Plaintiffs held in bonds of the company and accrued interest over $80,000 against the property. The alleged interests of the defendants was the result of a judgment of $500, divided into fourths and eighths, obtained after the mortgage, and asserted as a title, adversely, while the principal defendant claimed to be the attorney. The equity of the decree, under the circumstances, cannot be questioned, and we might with propriety stop at this point, and affirm the findings and decree, but the zeal, labor, and ability expended by counsel for appellants demand greater consideration and attention, and, although the defense appears throughout to have been far more technical than substantial, it was maintained upon the trial with marked ability, and is urged in the same manner in this court. There are 16 assignments of supposed errors. The first: That the court erred in denying appellants' motion for leave to plead the repealed statute of limitations of three years. The second to the fifth, both inclusive, are specific allegations of error in the admission of evidence of the plaintiffs. The remaining 11 are general and formal. It seems hardly necessary, in assigning errors, to print a page or two of supposed errors dependent upon the preceding ones,-conclusions naturally and inevitably following the finding as to those alleged specifically. Evidently the contention that the cause of action was barred by the general statute of limitations was abandoned, but in appellants' oral argument, quite at length, and in the printed argument of counsel, the contention is that the act repealing the statute of three-years limitation was unconstitutional and void; consequently, that such statute was in force and available as a defense. Much time and labor were expended by counsel of appellees in resisting such contention. The right to interpose the plea was based upon the affidavit of defendant Owers, filed July 30, 1891, in which he says that at the time of filing his answer and those of Scott and Manning he was under the impression and belief that the three-years statute of limitation had been repealed, and that the act repealing it and fixing the time at six years was valid, and proceeds: "That the district court of Arapahoe county has recently decided that the said act of 1879, which purports to repeal said section 1686, Gen. Laws, and to change the period of limitation from three to six years, is void, not having been properly enacted, and that said section 1686 is still in force," etc., and asked to file an amended answer, setting up not only the three-years limitation, but also the general act of six years. Although the district court may have held as stated, it not being a court of last resort, such decision was far from being conclusive of the question, and could hardly be deemed a proper basis for the action of a court of concurrent jurisdiction. It certainly could not be regarded as a reason for tiling a plea of the six-years statute of limitations. We do not intend to discuss or decide the constitutionality of the act repealing the three-years limitation act. Suit was instituted March 11, 1889. The supposed answer of the Olathe Company by defendant Owers was filed November 18, 1889; the answer of Owers, November 22, 1889; the answer of Scott and Manning, January 29, 1890; replications filed February 17 and March 19, 1890. The application to plead the statutes of limitation by amended answer was made July 30, 1891, nearly a year and a half after the issues had been made up. In Cross v. Moffit, 11 Colo. 212, 17 Pac. 771, it was held: "This statute [of limitations] is a personal privilege to be relied upon or not as the debtor may choose. There is no legal presumption that he will elect to plead it." It may be waived, and, where not pleaded in the first instance, it is presumed to have been waived. "Another general rule of great practical importance is that the bar of the statute must be interposed by the diligence of the debtor, and as early as possible." Wood, Lim. Act. § 7. "The statute being a strict defense if a party omit to plead it, the court will not relieve him by allowing him to amend by adding the plea." Angell, Lim. § 285; Jackson v. Varick, 2 Wend. 294. "The plea of the statute cannot be amended, though the amended plea is tiled before the rule day has expired. But, if the plaintiff amends his declaration, the defendant may plead the statute anew." State v. Green, 4 Gill & J. 381; Reed v. Clark, 3 McLean, 480, Fed. Cas. No. 11,643; Nelson v. Bond, 1 Gill, 218. "Nor will a default be taken off to allow the plea of the statute to be made." Sheets v. Baldwin, 12 Ohio, 120. And see Cross v. Moffit, supra; Mclver v. Moore, 1 Cranch, C. C. 90, Fed. Cas. N. 8,831; Wilson v. Turberville, 1 Cranch, C. C. 492, |