Thornton

Counsel agree that the plaintiff’s appeal was taken from an order of the superior court refusing its motion for new trial, made after the second trial of the case, and we shall so regard it, although on the face of the notice of appeal it is at least doubtful whether it is not directed to a previous order of the court granting a like motion of the defendant Thornton after a former trial.

Defendants James C. Barr and wife, on January 24, 1888, executed to plaintiff their promissory note for the sum of one thousand dollars, payable in two years from date, with interest, and, to secure the same, executed *258 also a mortgage of certain lands. On January 24, 1890, said note being mainly unpaid, the defendant Thornton loaned to Barr and wife the sum of four hundred and thirty-two dollars and sixty cents, and as security for its repayment they executed to her an instrument in form a deed absolute of the land previously mortgaged to plaintiff; such instrument (intended as a mortgage) contained a clause to the effect that the second party named therein, said Isabella Thornton, “ assumes and agrees to pay” the balance unpaid on the said former note and mortgage. The Barrs have never…