A mortgage on personal property in favor of Culver against Mullally was foreclosed, May 3, 1893, for $500 principal, with interest and attorney’s fees. Mullally interposed an affidavit of illegality, June 6, 1893, alleging that $378 had been paid T. R. Lamar on the mortgage, and tendering the balance to the sheriff’. On the same day the sheriff acknowledged receipt of $122 from Mullally upon the fi. fa. At the trial Mullally was al*645lowed to amend his affidavit of illegality by adding: “ Said T. R. Lamar being then and there joint owner of said mortgage with said E. B. Culver, the same being 'in his desk in his office, and he equally with the said E. B. Culver entitled to collect from this deponent, said ■mortgage having been written by and negotiated with said T. R. Lamar; and while the note was made payable to E. B. Culver, it was expressly understood that pay•ments were to be made direct to said Lamar; . . and deponent prays said T. R. Lamar may be made a party plaintiff to this cause, and stand to and abide the results.” The jury found in favor of the defendant, and a motion for a new trial was overruled, upon condition that defendant within ten days pay to the sheriff for the use of plaintiff $25.94, and $14.79 attorney’s fees, and all ■costs. To the refusal of a new trial and to the ruling •allowing defendant to amend his affidavit of illegality and in said amendment to make Lamar a party plaintiff' over objections, Culver excepted. In the Supreme -Court, a. motion to dismiss the writ of error was made, because Lamar was not a party to the bill of exceptions.