Our cases in which the above doctrine has been considered are all cases dealing with claims of lienholders and secured creditors, and lend support to the above doctrine. Kidder v. Page, 48 N.H. 380; Gregg v. Thurber, 69 N.H. 480; Staniels v. Whitcher, 73 N.H. 152; Barbin v. Moore, 85 N.H. 362; Sanborn Co. v. Keefe, 88 N.H. 236. The motion made to have plaintiff exhaust his remedy against the Stiles Co. before he proceed to levy on defendant's real estate, though stating it was brought in favor of himself and his wife Esther, and such other creditors as may elect to join, is signed only by the defendant himself.

In this state, however, the rule has been understood to be that the right of marshaling depends upon the situation existing when the junior lienholder has notice of the conveyance under which the claimant asserts a right to have the assets marshaled. Staniels v. Whitcher, 73 N.H. 152; Brown v. Simons, 44 N.H. 475; Gage v. McGregor, 61 N.H. 47; Mahagan v. Mead, 63 N.H. 570. Upon analysis, it appears that the two principal factors to be considered are priority in time and our statute of enrollments. Applying the test of priority of time, it is clear that the petitioners have an advantage in the fact that their liens on the insurance fund antedate the liens of the interveners upon the real estate. The equity of the petitioners to marshal as against the receiver arose prior to the acquisition by the interveners of their lien on the real estate. If the factor of time alone be considered, the interveners can be given nothing.

The burden is on the excepting party to establish error in the proceedings at the trial. Staniels v. Whitcher, 73 N.H. 152. As neither the facts found by the court as to the non-production of the original or the evidence on which the finding was made are transferred, the contention now made that the absence of the original was not properly accounted for is not before the court. The failure to refer to these questions in the reserved case is persuasive evidence such objection was not made at the trial.

The jury were told, in effect, to give it no weight whatever upon the only point in the case it was calculated to have a bearing upon. If the jury had been told that the evidence was stricken out and that they could not only consider it for any purpose, it is not plain how its effect would be more effectually removed than it was by the instruction which was given. Whether the jury in fact considered it in reaching a verdict is a question for the determination of the superior court. Lee v. Dow, 73 N.H. 101. As the burden is on the excepting party to point out the error committed, the defendant fails. Kendall v. Flanders, 72 N.H. 11, 12; Staniels v. Whitcher, 73 N.H. 152. The defendant's second request for instructions was properly denied. If the defendant did not pay rent to the plaintiff on the lot in question, but on another lot, and always understood the transaction in that way, it does not follow that he was entitled to a verdict.