On the 4th clay of January, 1859, the defendant gave to W. & D. Urquhart four notes, payable to his own order, and by him endorsed in blank, and for the purpose of securing their payment he gave a mortgage on certain property, and agreed therein that should it become necessary to institute legal proceedings for the recovery of the amount of the notes, or any part thereof, he would pay the fees of the attorney whom the holder of the note might employ for such purpose.
On the 7th day of February, 1861, Messrs. W. & D. Urquhart had possession. of these notes (they having become due), and defendant gave to them four other notes, to represent the original notes, payable to his own order, and by him endorsed in blank. The agreement was that W. & D. Urquhart should still retain the notes first given, and that the new notes given by defendant should not operate as a novation of the old ones, nor affect nor impair the validity of the mortgago given to secure their payment.
Plaintiff became the owner of one of the said notes given in February, 1861, and brought suit to recover the amount, with interest thereon, and the fees of the attorney employed to institute suit. Plaintiff also asked for the recognition of the mortgage in his favor, and the enforcement thereof.
Defendant answered by a general denial.
The District Judge rendered judgment in favor of plaintiff, condemning defendant to pay the amount of the note, with the interest thereon, fees of the attorney and costs of suit, and decreeing that the mortgage be recognized in favor of plaintiff; that it be enforced, and that the property mortgaged he seized and sold to satisfy the claim of plaintiff
From this judgment defendant has appealed.
The agreement between W. & D. Urquhart and defendant, in his giving *698the new notes, was that they should represent the old ones, but not to such an extent that the mortgage should exist to secure the payment of the new notes.
The security by mortgage for the payment of the old notes, was not to be affected in any manner by the new ones. No contract of mortgage was made in giving the new notes.
' It is decreed that the judgment of the District Court be annulled and reversed; and it is further decreed that plaintiff recover of defendant tho ■sum of six thousand six hundred and sixty-six dollars and sixty-six cents and two-thirds of a cent, with interest thereon at the rate of eight per cent, per annum, from the 15th day of March, 1862, till paid, and the costs of suit in the District Court.
It is further decreed, that plaintiff pay costs of this appeal.
Labauve, J. recused.