Objections to the introduction of testimony, depending upon the time at which it was admitted, are not a subject of exceptions. In the present case, the rights of the defendants would seem to have required the departure from the ordinary order of introducing evidence, the contents of the book not having been made known or offered to the jury until the closing argument for the plaintiff.
The instruction to the jury, that the plaintiff must show to the satisfaction of the jury that the party whose conveyance was sought to be avoided was in fact insolvent, was correct. Of course we are to understand “ insolvency ” in its legal sense.
The further instruction, that the plaintiff must show affirmatively that the debtor in fact intended to prefer the defendants as preexisting creditors, was also correct. By such ruling the nature and character of the evidence which would be required to show this fact was not at all limited, nor were the jury at all restricted from inferring the fact of intention to prefer from evidence of his known insolvency and other circumstances confirmatory of such a purpose.
The last instruction objected to is that in reference to the sale being made in the course of business, in good faith, in the full expectation that the vendor would continue in business, and with no intent on his part to give any preference to a preexisting creditor. We see no legal objection to this instruction ; or to the ruling that, under such circumstances as were stated, the application of a part of the proceeds of the sale to the payment of a preexisting debt would not vitiate the sale.
Exceptions overruled,