
    Davis vs. Dunn.
    Where the issue was whether a mortgage had been settled by the giving of new notes in place of the old one which it was executed to secure, it was not competent to ask the maker generally if the new notes were not given in settlement of a former indebtedness, without specifying what indebtedness.
    Mortgage. Evidence. Before Judge Wright. Calhoun Superior Court. March Term, 1878.
    Dunn sued out a rule nisi against Davis to foreclose a mortgage. The latter pleaded, among other things, that the land had been set apart to him as a homestead in bankruptcy, and that the mortgage debt had been settled by giving new and smaller notes. On the trial, the court refused to allow counsel for defendant to ask him if the small notes were not given in settlement of “ a former indebtedness.”
    The jury found for plaintiff. Defendant moved for a new trial, which was refused, and he excepted.
    For the other facts, see the decision.
    J. J. Beck; A. Hood ; D. A. Vason, for plaintiff in error,
    cited 58 Ga., 604; 33 Ib., 208; Annotated Bankrupt Act, p. 72, notes 166 & 167.
    C. B. Wooten, for defendant,
    cited 1 Hill, on Mort., pp. 476, 477.
   Warner, Chief Justice.

This case came on to be heard in the court below on a rule nisi to foreclose a mortgage on certain lands therein described. The defendant filed his defense thereto, and upon the trial of the issue thus formed, the jury returned a verdict in favor of the plaintiff. The defendant made a motion for a new trial on several grounds, which was overruled, and the defendant excepted. The only open question not heretofore adjudicated by this court, embraced in the defendant’s motion for a new trial (the debt against which the homestead in bankruptcy was claimed having been contracted in January, 1868,) is the refusal, of the court to allow the defendant, Davis, to answer the question, “ If the small notes were not in settlement of a foimer indebtedness ? ” It appears from the evidence in the record that the original note, dated in January, 1868, which the mortgage was given to secure, was for the sum of $412.00, and that by agreement of the parties, that note was divided into five smaller notes, four for $100.00 each, and one for $12.00. The witness, Davis, had already stated that at the time the small notes were given and the large note given up, nothing was said about tbe mortgage, and tbe issue on trial was whether the mortgage bad been settled. The witness was not asked if tbe small notes were not given in settlement of tbe mortgage, but was asked if tbe small notes were not given in settlement of a former indebtedness. Whether that former indebtedness bad reference to tbe mortgage indebtedness or not, did not appear, and there was no error in ruling out the answer to tbe question in tbe shape in which it was propounded.

Let tbe judgment of tbe court below be affirmed.  