The exceptions tendered by the petitioner to the judge who presided at the trial differ substantially from the exceptions proved before the commissioner.
The action was against the indorser of a promissory note, to which the defence was payment by the giving a second note. The only exception alleged at the trial was to the ruling of the judge that the second note was given as collateral security for the note in suit, and not as payment, the defendant contending that, upon all the evidence in the case, the plaintiff was not entitled to recover. It appears by the commissioner’s report that the plaintiff Dean testified at the trial that he did not take the second note in payment of the note in suit. This testimony the defendant omitted in his exceptions presented to the judge. It is clear that this testimony bore directly upon the subject to which the exception relates, and was material and important. It may have been the evidence which controlled the mind of the judge, who tried the case without a jury, in coming to the conclusion which he reached, and which the defendant excepted to as not justified upon all the evidence. The petitioner therefore fails to prove that the exceptions presented by him were substantially conformable to the truth. They were for this reason rightly disallowed. Crow v. Stowe, 113 Mass. 153, and cases cited. The petitioner is not entitled to have the validity either of the exceptions presented or of the exceptions proved considered by this court.
Petition dismissed.