delivered the opinion of the court.
This is a case of insolvency. Bergeron and other creditors of the insolvent debtor are appellants from a judgment dismissing their opposition to the claims and rank in which Dubertrand and others, holders of certain promissory notes of the insolvent, and endorsed by Dubertrand, occupy on the tableau of classification and distribution of the insolvent’s estate.
The counsel for the appellants have contended in this court, that the District Court erred in dismissing their opposition, on several grounds:
1. Because the original debt and notes endorsed by Dubertrand, to secure the payment for which the mortgage was given, have been novated.
2. But even admitting, for argument sake, (the proposition being denied,) that, by surrendering the original notes, the debt was not novated, nor the mortgage to secure it extinguished, there is no legal proof that the notes, on which the mortgage is now claimed, were given for the renewal of the original notes endorsed by the appellee.
Whereamoritosecure8'oncertal^specified amount, which wards made, and doles' 'are take"in renewal oi the original ones, with the ment:/*trf°that *e. endorser can of the mortgage, payment of the notes’ ov,e.r ordinary creditors. ,3. The mortgage was given to secure Dubertrand from the consequences of his liability as an endorser, and he does not show that he has paid any thing on his endorsement, The payment of the notes of the insolvent debtor, are now claimed to be paid out of the property surrendered.
The mortgage deed shows that the mortgage was given to secure Dubertrand for endorsements and acceptances made and to be given; and the benefit of the mortgage is given to holders of such endorsements and acceptances.
The record shows that the original notes endorsed by the appellee were given for the sum of sixteen thousand dollars. ,rn . °. rne evidence in the case, which appears to have been introduced and received without objection, but which might have been objected to, established the fact that the notes for which the benefit of the mortgage originally executed is now claimed, were given for the renewal of the original notes, This fact appearing, from evidence received without obiecrr o? j tion, the opposition of the appellants was correctly overruled,
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.