
    George G. Torrey vs. Alvarez Fisk.
    
      Johnson v. Blassdaleand Grvhbs, 1 S. & M. 20, cited and confirmed.
    On the trial of a suit upon a note, the maker offered to prove that he signed the note in blank as a surety, with an express agreement that it was to be made payable to a bank in renewal of notes previously executed by him as surety for the same party, and that it had been filled up payable to a different person, and used for a different purpose; held, that the testimony without other proof, that the payee took the note with knowledge of the purpose for which it was executed, was irrelevant and inadmissible.
    A party is not confined to any particular order in the introduction of his testimony ; but when he offers testimony, and it is excluded, and he excepts to the exclusion, it must be shown affirmatively during the progress of the trial, that the testimony offered and excluded was relevant and pertinent.
    
      The high court of errors and appeals seldom entertains objections not made in the court below; yet, where testimony was offered below, and, on objection made, excluded, if the exclusion were proper, it will not reverse the cause because the judge below assigned an insufficient reason for its exclusion.
    Whether the principal in a note is a competent witness for the surety in an action on the note against the latter, to prove that the note was signed by the surety in blank for one purpose, and used for a different, — Quiere.
    In error from the Claiborne circuit court; Hon. Stanhope Po-sey, judge.
    Alvarez Fisk sued George G. Torrey on the following note, to wit:
    “ Port Gibson, January 1, 1839.
    “ $8,800. Twelve months after date we promise to pay to the order of Alvarez Fisk, eight thousand eight hundred dollars, value received payable at the Agricultural Bank at Natchez.
    
      “ Signed, H. & H, O. Anderson,
    G. G. Torrey.”
    The defendant plead the general issue.
    At the October term, 1846, the cause was submitted to the jury, who found for the plaintiff for the sum of $7,152.20, for which the court rendered judgment.
    During the progress of the trial, the defendant offered to read in evidence to the jury the deposition of Hiram O. Anderson, one of the makers of the note; his deposition was in substance as follows to wit: That he was in 1842 discharged from his debts under the bankrupt law ; the note sued on was given in consideration of a balance due upon a purchase of a stock of goods and store-house bought by H. & H. O. Anderson of H. Carpenter & Co. It was executed in consideration and in renewal of a prior indebtedness. H. & H. O. Anderson owed H. Carpenter & Co., as part of their indebtedness for the goods, &c. a note of $12,717.32, which H. Carpenter & Co. assigned to Alvarez Fisk; H. & H. O. Anderson paid Fisk part of this note, and executed a new note for $9,325.80, due on the 4th of January, 1839, for the residue.
    On the 13th of March, 1839, H. & H. 0. Anderson paid to Fisk on this list note $1,325.80, leaving a balance of $8000 due from 1st January, 1839, which amount was renewed, payable 1st January, 1840, with 10 percent, interest added, making $8,800, for settlement of which the note sued on was given.
    At the time Torrey signed the note, the witness thought the note for $9,325.80 belonged to the Agricultural Bank at Natchez. He wished, as a member of the firm of H. & H. O. Anderson, to make a payment on it, and renew the balance, and not knowing the amount he should have to pay, he got Mr. Torrey to sign a blank, with the understanding that it was to be filled up to that bank for the balance due after paying the call. He told Mr. Torrey, at the time he signed the note, that it was to be used in renewal of $9,325.80 held and due to the bank, and it was signed upon that understanding; he may have told Mr. Torrey that it was to be signed also by others, but does not remember distinctly upon that point; Mr. Torrey never waived to him any of the terms or conditions upon which he signed the note ; nor had he spoken to him of its execution and delivery in the present shape; witness supposed at the time of using the blank with Mr. Fisk, that Fisk had obtained a discount of the note of $9,325.80 in the bank, and H. & H. O. Anderson failing to arrange it at maturity, Fisk took it up; and witness finding the same claim in Fisk’s hands which he thought belonged to the bank, the witness did not hesitate to fill up the blank to Fisk, inasmuch as it was being used in renewal of the same debt for which it was intended, although passed to a different party from the one designated at the time Torrey signed it; the witness remembered but one instance in which the defendant, Torrey, became surety for H. & H. O. Anderson, on a debt due to an individual and in that instance he demanded and received indemnity before becoming surety.
    To the reading of this deposition the plaintiff objected and the court sustained the objection and ruled out the deposition, on the ground that the witness was one of the makers of the note; and that his being a discharged bankrupt did not render him an admissible witness, nor entitle his deposition to be read. To which decision the defendant took a bill of exceptions.
    
      The defendant also offered to prove, by Thomas H. Wade, that the note sued on was signed in blank by defendant as security for H. & H. 0, Anderson, upon the express agreement between Anderson and Torrey, that the note was to be filled up payable to the Agricultural Bank at Natchez, in renewal of a note held by that bank, and that the note was afterwards filled up payable to Fisk without the knowledge or consent of Torrey; but the plaintiff objected to the evidence, and the court sustained the objection and did not permit Wade to testify, on the ground that the plaintiff Fisk was not a party to the agreement, to which opinion also Torrey excepted, and tendered his bill of exceptions.
    Torrey sued out this writ of error.
    
      H. T. Elicit, for plaintiff in error.
    I. H. O. Anderson was a competent witness for the defendant below. Blagg v. Phoenix Ins. Co. 3 Wash. C. C. R. 5 ; Fox v. Whitney, 16 Mass. 120; 1 Rawle, 197; Baird v. Cochran, 4 Serg. <fc R. 397; Hepburn v. Cassel, 6 lb. 113, 115; 1 Greenl. on Ev. 531, § 385.
    2. The testimony of Thomas H. Wade should have been admitted. It was good as far as it went, and it was no objection to its competency, that it did not go far enough to make out the defendant’s whole case. The defendant may have views ready with proof to show that Fisk was privy to the agreement. See Duncan v. Watson, 2 S. & M. 135, 136.
    3. It was not necessary to show that Fisk had any notice or knowledge of the extent of the authority of Anderson, in reference to the note signed in blank by Torrey; for it is proved that the note was given to Fisk in renewal of a balance due upon an old debt. 4 Paige, 215; Freeman’s Ch. R. 338; 20 Johns. 637; Harney v. Pack et al. 4 S. & M. 229.
    4. The bill of exceptions shows that the only objection made to Anderson’s testimony was, that he was a party to the note, and the only objection to Wade’s evidence was, that it did not show that Fisk had knowledge of the agreement.
    5. This court will not notice objections to testimony, which were not made in the court below. Randolph v. Doss, 3 How. 205; Prussel v. Knowles, 4 How. 90; Neeley v. Planters Bank, 4 S. & M. 113; Sessions v. Reynolds, 1 S. & M. 730; 11 Wheat. 209; Allen v. Smilh, 7 Halst. 168.
    
      J. B. Thrasher, on same side.
    1. The court erred in ruling out the deposition of H. O. Anderson, upon the ground (hat he was one of the makers of said note, and that his subsequent discharge as a bankrupt, from all his debts and liabilities, did not render him a competent witness for the defendant. Walton v. Shelly, overruled in JordainY. Lashbroolce, 7 T. R. 601; 1 Greenl. on Ev. 477; Murray v. Judah, 6 Cow. 484; Ludlow v. Union Ins. Co. 2 S. & R. 119; United States v. Smith, 4 Day’s R. 121 ; Quimby v. Wroth, 3 H. & J. Rep. 249 ; Murray v. Marsh, 2 Hay w. 290; 3 Mason’s C. C. R. 5; 1 Greenl. on Ev. § 385.
    2. The facts proposed to be proved by Wade, and the deposition of Anderson, constitute in law a valid defence. Fisk having received it for a precedent debt, he is equally affected with the fraud, as though he had notice. Coddington v. Bay, 20 Johns. R. 637. See also Dickerson v. Tillinghast, 4 Paige, 222; and Arnold v. Patrick, 6 Paige, 316; 2 Kent, 617; Story on Agency, 158; 1 S. & M. 21.
    3. The only points raised and decided in the court below, constitute the only points which can be made in this court. Wilson v. Oioens, 1 How. 126. Errors not excepted to, or points not made in the court below, will not be noticed in this court. See cases cited in Smedes’s Digest, 77. All other points or defects in pleading are subject to be remedied by amendment at any time before the jury retire. H. & H. 591, § 14.
    
      Eustis, for defendant in error.
    1. Anderson was not a good witness. Walton v. Shelly, 1 Term R. 296; Jordain v. Lashbrooke, 7 Term R. 601; 3 Phil. Ev. (Cow. & Hill’s notes) 77, and authorities cited.
    2. If Torrey has this debt to pay, he can recover it back from Anderson, notwithstanding the discharge; his being a bankrupt did not therefore render him competent, Frost v. Carter, Caines’s Cases in Error, 811.
    3. Wade’s testimony was properly ruled out. Commercial Bank of Natchez v. Claiborne, 5 How. Miss. R. 301.
   Mr. Justice Clayton

delivered the opinion of the court.

Upon the trial in the court below, the defendant offered to prove, by two witnesses, that he signed the note on which the suit is brought, as a surety ; that the note was then blank, and that he signed it with an express agreement that it was to be made payable to the Agricultural Bank, in renewal of notes which he had previously executed as surety for the same party. The court below excluded the testimony, and the propriety of that exclusion is the only material point involved.

In Johnson, Use, &c. v. Blassdale & Grubbs, 1 S. & M. 20, this court said, “ that he who signs a bill or note in blank, and delivers it to another, makes that other his agent, and authorizes him to fill it up with an indefinite amount. It is an unlimited letter of credit. Yet the rule must be received with this qualification : If there be in fact a limit to the authority, which has been exceeded, if a third person take the note with knowledge that the limit has been transcended, the note will not be binding in his hands as against the surety for the whole amount.” To this principle we still adhere. There is nothing in the record to show that Fisk had any knowledge of the matter offered in evidence; and without notice he could not be affected by it. There was no offer to prove the existence of such notice. The testimony therefore was irrelevant, and was properly excluded. Had other evidence been adduced to show its pertinence, the result would have been different. The party is not confined to any particular order in the introduction of his testimony. But where the exception is to the exclusion of testimony, it must be shown during the progress of the trial to be relevant. Lake v. Munford, 4 S. & M. 319. If this were not the rule, the reversal would take place upon merely conjectural grounds, not upon what the record actually discloses.

Anderson, the principal in the note, was offered as a witness to prove the same facts, with the witness jnst referred to. He was rejected by the court, on the ground that he was a party to the note. Even if he were unobjectionable on this score, which need not be decided, the testimony itself, no matter by whom given, was inadmissible. The same reason operated to exclude it, in his case, as in that of the other witness. The decision was right, and this court will not reverse, because a wrong reason was assigned for it.

But it ¡surged that this court will not notice objections which were not made in the court below. Within certain limits that is true. If the testimony had been received below without objection, this court would very reluctantly listen to objections, taken here for the first time. But when, upon objections made, the evidence was excluded, if the exclusion were proper, it will not be right to reverse, because the judge may have assigned an insufficient reason.

Judgment affirmed.

A petition for a re-argument was applied for, principally on the alleged ground that the note was executed to Fisk for & preexisting debt. The petition, however, was overruled.  