There seems to be little or no doubt as *520to the doctrine, that if the principal makes a formal tender to the creditor, of the full amount of a debt already due, the creditor is bound to accept it, or, if he refuses to do so, the surety will be discharged.—Brandt on Suretyship, § 295. It is regarded, sometimes, as an extension of the loan, to which transaction the surety was not a party, and by which, therefore, he is not bound.—McQuesten v. Noyes, 6 N. H. 19. And, at other times, it has been pronounced a sort of fraud on the surety, whose relationship is said always to import entire good faith, and the utmost confidence.—Saille v. Elmore, 2 Paige, 497.
The rule is not precisely the same, where there is a general offer to fay made by the principal, without the formalities of a legal tender, and unaccompanied by a definite refusal to accept on the part of the creditor. Such an informal offer, when refused by the creditor, is generally construed as a mere gratuitous indulgence, having no legal effect upon the liability of the surety, unless it operates to prejudice or injure him. Such is the doctrine recognized in White's Adm’r v. The Life Association of America, 63 Ala. 420, the title under which this case was reported when last before this court on appeal. It was also adjudged in that case, after a most thorough and exhaustive review of the authorities, that if the principal was insolvent at the time of the tender, thus informally made and declined, the case would no longer be one of mere gratuitous indulgence, such as the law tolerates with complacency, but of positive wrong to the surety, discharging his liability, because it operates to his prejudice and injury. It is unnecessary that we should further discuss these propositions. It is enough to announce that we here re-affirm them.
The evidence contained in the record is, in our opinion, sufficient to show, prima facie at least, that the estate of Mike White, the principal maker of the note due the appellant, was insolvent at the time of the transaction in cpiestion, in May, 1878. When a fact arises collaterally, the rules of evidence never exact as cogent proof in affirmation of its verity, as where it is directly in issue. If the notes of the intestate, and other presumptive evidences of his indebtedness, which are presented for payment to the administrator, exceed in amount the assets of the estate, which are available for the payment of debts, a prima facie case of insolvency exists. It is immaterial that some of these claims are in litigation, and are alleged to have been settled. If they are in the form of promissory notes, or other like written acknowledgments of indebtedness, which are in the possession of the creditor, the law does not presume they are paid, but the onus of such a defense is cast upon the maker. The proof seems clear that the estate was insolvent, provided the controverted debt of some eight thousand dollars, then in *521process of chancery litigation, remained unpaid as a subsisting claim against it, — a fact which must be ass,limed, in the absence of proof to the contrary.
It is urged that Fassett had no authority to collect the twelve hundred dollar debt due by White’s estate to the Life Association of America, and that for this reason he was excusable for 'not accepting the offer of payment, even if, in truth and fact, it was made. Fassett is shown, however, to have been invested with the power to settle the policy of insurance on White’s life, —a debt which was then due his estate. This general power, we think, embraces the special one to retain for a debt due by an insolvent estate, when an offer to pay in this manner was made by one representing the debtor. Especially is such an inference justifiable, in view of the fact that the appellant fails, in its answer to the bill, to deny the possession of such authority by its constituted agent, and the agent himself evades an answer to a special interrogatory touching the matter. The fifth direct interrogatory to Fassett’s deposition, for example, reads as follows : “ Did von, or not, have with you for collection, or authority to collect, a note against Mike White and Worley White, for §1200?” Answer: “My impression is, that I did not Have the note with me. I am quite sure I never saw the note referred to; ” thus affirming nothing inconsistent with the authority to collect.
It is not contended by the appellee that there was any formal tender of the twelve hundred dollar debt to Fassett. It is only insisted that there was an offer to permit him to retain the debt, from the seven thousand five hundred dollars paid by the company, through him, in compromise of the policy of insurance on the life of Mike White. There is a plain conflict in the testimony op this point. Day, who was the attorney for the admin-istratrix of White’s estate, testifies very positively that the offer was made by him, and declined by Fassett, during the progress of the negotiations; for what reason, it does not clearly appear, except that the refusal was not referred to any want of ‘authority in the agent. Fassett, in his testimony, denies Day’s statement, and asserts that neither he nor the administratrix ever made such an offer. When subjected to cross-examination on the subject, however, his answers do not evince that entire candor and freedom from equivocation, which should ever be the handmaids of truth, and the presence of which strengthens a deponent’s testimony as much as their absence must be construed to weaken it. While we fully recognize the principle, that whenever the evidence in a cause leaves a disputed fact in doubt and uncertainty, the issue must be found against the party upon whom the burden of proof rests; yet courts and juries should rather weigh than cowrit the testimony of witnesses, and a de*522cree or verdict should never be found by them on a mere preponderance which fails to produce a proper conviction or satisfaction in their minds, if, indeed, such conviction can, strictly-speaking, ever be said to exist, in the absence of a preponderance of the evidence.—Vanderventer v. Ford, 60 Ala. 610. We are not inclined to reverse the finding of the chancellor on this issue, as we are far from being convinced that he was in error.
The opinion of this court, rendered on the former appeal taken in this case, is properly no part of this record, and should not have been copied in the transcript. No costs therefore will be allowed the register for this portion of the record, — a rule which has heretofore been announced, and one to which the court sees fit to declare its purpose to adhere strictly in the future.—Lake v. Security Loan Association, at the present term, ante, p. 207.
The decree of the chancellor is affirmed.
StoNE, J., not sitting.