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 *125said 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.