Collier answered separately and intervened, setting up a claim of ten thousand six hundred and sixteen dollars and sixty-four cents, with interest, as a judgment creditor of Byrnes, for which he claims to have a lien or mortgage on the proceeds of the property in contest; which judgment was duly recorded on the 13th April, 1839. He prays that the defendants' mortgage be annulled, as having been made in fraud of creditors, and that he be authorized to retain the amount of his judgment from the proceeds of the sale; he prays to be allowed a priority of mortgage, and that the plaintiffs' demand be rejected.

The plaintiffs, in answer to the demand in intervention, deny that the intervenor is entitled to any preference, as a creditor of Byrnes, over them, but aver that their claim, as privileged creditors by judicial mortgage against Byrnes, is better, and of higher dignity than the claim set up herein by Collier, and should be preferred to his.

Collier came in, discontinued his demand in intervention, and reserved his claim for a separate action.

The plaintiffs proceeded to trial, and produced a mass of testimony to show the insolvency of Byrnes, their debtor, at the time of executing the mortgage in contest.

There are several bills of exception taken to the refusal of the court to receive the plaintiffs' witness; and also testimony offered to show the insolvency of Byrnes :

1. To Brown Cozzens, who was offered to prove that Byrnes was generally considered as insolvent at the time of making said mortgage: objected to, as not legal evidence of the insolvency, or of knowledge on the part of the defendants.

2. A. L. Wilson was offered to prove the same fact, and objected to on the same grounds.

3. Lewis A. Collier, one of defendants, was offered to prove that a few weeks after the execution of the mortgage, defendant, Ferriday, told witness that he was apprehensive of the insolvency of Byrnes, and offered to contribute with witness, who was also a creditor, to the expense of bringing some negroes back, which were not included in the mortgage. Both the witness and testimony were rejected, on the grounds

that Collier was a party to the suit, and creditor of Byrnes, WESTern Dist. and interested. Collier being in court, however, was allowed October, 1840. to be examined on facts and articles, as to matters relevant to BRANDER ET AL. the issue. Evidence that Byrnes was generally considered as insolvent, was deemed inadmissible to prove insolvency, but entitled to its proper weight, to show knowledge of the insolvency, if otherwise proved, in the defendants at the time of the contract of mortgage.

There was judgment rejecting the plaintiffs' demand, on the reasons set forth in 4 Louisiana Reports, 427, and they appealed.

Dunbar and Hyams, for the plaintiffs, insisted that the witnesses and testimony should have been received; and that the case should be remanded to let in this testimony.

Ogden, for the defendants, urged the affirmance of the judgment.

Martin, J., delivered the opinion of the court.

The plaintiffs seek to set aside a mortgage, on the ground of the insolvency of the mortgagor at the time it was given, and that its object was to give an unjust preference to the mortgagees over other creditors. There was judgment against the plaintiffs, and they appealed.

The case is before us on four bills of exception, taken by the counsel of the plaintiffs and appellants, to the rejection of four of their witnesses.

1. Cozzens, the first witness, was offered to prove that at the date of the mortgage, Byrnes, the mortgagor, was generally considered to be insolvent.

2. Wilson was offered to prove the same facts, and objected to on the same grounds.

The objection to the testimony of these witnesses was, that evidence of Byrnes being generally considered to be insolvent, at the time of the mortgage, was not legal evidence of the actual insolvency of Byrnes, or of the knowledge, on the part of the defendants, that he was insolvent.

FERRIDAY, BEN-
NETT & Co.

WESTERN DIST.

BRANDER ET AL.

FERRIDAY, BEN-
NETT & Co.

Evidence of

It appears to us the court erred. The objection went only October, 1840. to the effect, and not to the admissibility of the testimony. The plaintiffs sought to establish the insolvency of the mortgagor, within the knowledge of the mortgagees. Evidence of the general opinion of the insolvency, in the neighborhood of mortgagees, is a fact which may be shown to create a the general opi- presumption that the mortgagees were not ignorant of it; a presumption which, coupled with others, might induce the gagor, in his belief of the mortgagees' knowledge. Presumptive evidence neighborhood, to the knowledge ought not to be rejected, because, alone, it does not operate of the mort- conviction. The party cannot offer all his proofs simultanea mortgage in ously; and is not to be controlled in the choice of that which first offer.

nion of the insol

vency of a mort

gagees receiving

fraud of credi

tors, is fact

a

shown to create

of knowledge in

he

may

which may be 3. The third witness, Collier, the vendee of the mortgaged the presumption premises, had been made a defendant. He was offered to the mortgagees. prove, "that a few weeks after the execution of the mortgage, one of the mortgagees told witness he was apprehensive Presumptive evi dence ought not Byrnes was insolvent, and offered to contribute with witness, to be rejected, who was also a creditor of Byrnes, to pay the expenses of it does not oper- bringing back certain slaves, not included in the mortgage, which were sent away from Byrnes' plantation."

because, alone,

ate conviction.

A party cannot offer all his

not to be con

choice of that

which he choos

Objection was made to the witness and his testimony, on evidence simul- the score of interest, and his being a party to the suit. He taneously, and is had prayed in his answer that the mortgage be set aside; trolled in the the court, therefore, did not err in rejecting him as a witness. 4. Harris, the last witness of the plaintiffs, having been es to offer first. examined without objection, was recalled to prove that he A party to the suit, who is in- was not acquainted with the law of Louisiana, in relation to be called as a contracts of an insolvent, at the time he was negotiating with Byrnes, as set forth in his testimony; this was objected to, A witness will on the ground that the knowledge of witness, in relation to to testify that he the laws of Louisiana, was immaterial, that he was bound to was ignorant of know the law; the objection was sustained, and we think the law, in rela

terested, cannot

witness.

tion to a certain properly.

transaction, as

his want of As the plaintiffs were entitled to the evidence of the two knowledge is first witnesses, which, in our opinion, were improperly reject

immaterial, and

he is bound to ed, the case must be remanded, to afford them the opportuni

know the law.

ty of availing themselves of this testimony: See the case of Maurin vs. Chambers & Williams, just decided; ante, 207.

October, 1840.

It is, therefore, ordered, adjudged and decreed, that the WESTERN DIST. judgment of the District Court be annulled, avoided and reversed; and that the cause be remanded for further proceedings, and with directions to admit the two first witnesses, as above stated; the defendants and appellees paying the costs of this appeal.

BLACKWELL
ET AL.

GRIFFIN.

BLACKWELL ET AL. vs. GRIFFIN.

APPEAL FROM THE COURT OF THE SIXTH DISTRICT, FOR THE PARISH OF
RAPIDES, THE JUDGE OF THE DISTRICT PRESIDING.

This appeal was evidently taken for delay, and judgment affirmed with the maximum of damages.

This is an action against several endorsers of a promissory note. The note was executed in Alexandria, the 10th June, 1837, and made payable to the order of Spencer Griffin, at the Union Bank in New-Orleans. It was protested at maturity for non-payment, and notice given to the endorsers residing in Rapides, by notices addressed to them at Alexandria, and put in the post-office at New-Orleans.

Griffin alone made defence. He pleaded the general issue, and averred that his endorsement was for accommodation, and the note was intended to be negotiated in bank, but was improperly transferred to the plaintiffs.

There was judgment against the defendants, and Griffin appealed.

Hyams, for plaintiffs.

Brewer, contra.

WESTERN DIST.
October, 1840.

WETMORE & co.

vs.

HUNTER ET AL.

Martin J., delivered the opinion of the court.

The defendant, sued as the endorser of a promissory note, pleaded the general issue, and averred that the endorsement was for accommodation, made with the view that the note should be negotiated in the Bank of Louisiana, and was improperly transferred to the plaintiffs.

The endorsement of the defendant was proved, as well as protest and notice thereof. The defendant gave no other evidence in support of the averment, in his answer, but the deposition of the cashier of the Bank of Louisiana, who stated that the note was deposited in bank for discount, but was not discounted, and was afterwards withdrawn by the maker before it became due.

The appeal was evidently taken for delay, and the plaintiffs have prayed for damages.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs and ten per cent. damages.

WETMORE & CO. vs. HUNTER ET AL.

APPEAL FROM THE COURT OF THE SIXTH DISTRICT, FOR THE PARISH OF
NATCHITOCHES, THE JUDGE OF THE DISTRICT PRESIDING.

Judgment affirmed, with the maximum of damages.

note.

This is an action against the maker and endorsers of a Hunter the maker, and Bullard first endorser, waived citation, and let judgment go by default, which was made final on the production of the note and protest. The suit was discontinued as to Smith, the other endorser, and Hunter and Bullard appealed.