The opinion of the Court was delivered by
Lowrie, J.
— The marrow of the decision of the Court below is, that if a creditor, knowing that his debtor is in failing circum stances, gets from him, for part of his claim, a mortgage substantially covering all his property, and gets the debtor to obtain the endorsement of another person for another part, without revealing the fact of the mortgage, this is a fraud upon the endorser, and discharges him from liability. This proposition could not be disputed in this case, unless by a mind pre-occupied by the fact that this was a renewal of an old endorsement; but that fact is set aside when it is noticed, that the previous endorsement had been discharged by the omission of demand and notice. It is only saying that he acts fraudulently who secretly changes a state of affairs, and then procures another to do an act, into which the true state of affairs enters as a motive.
It is objected, however, that there was no evidence of the bank’s participation in the transaction. But it happens that there is evidence that two of the bank’s officers were engaged in it, and the bank is now claiming the benefit of their action. They must go back to their old position if they would repudiate the fraud of the new arrangement.
We say it happens that there is evidence ; and by that we mean that this point does not appear to have been plainly taken in the Court below; and it is not to be expected that the record sent up here shall contain evidence on points not raised as questions of laAV. A bill of exceptions brings up only the evidence that is relevant to them, and not all the evidence in the cause. The Court is not bound to write down the evidence taken before the jury, nor even to remember it all. At least it is not error in the Court to forget some of it. And when the Court is asked to say that there is no evidence on a particular point, we cannot prevent them from saying, “We do not remember, let the jury decide that.”
The counsel for the defendant embodied in a proposition the facts on which he relied for the inference of fraud; and this is the best practice where points are thought to be necessary. A general prayer, for a charge that there is or is not evidence of a particular fact, is easily evaded by the bad memory of the Court; and how can we correct this ? A judge ought to have a good memory and great decision of character; but if he lacks either, a Court of error can do very little to supply the defect. Counsel are entitled to have the principles of law applicable to their client’s ease, clearly presented by the Court to the jury; but this often requires skill on their part, in presenting their points. There is no skill and no point in a request for a charge that there is no evidence of a particular fact. A better way is to call on the opposite counsel to indicate in writing the evidence relied on, and the Court may, in a proper case,, enforce the demand; and then the question will be one of shape. and body, upon which a well defined instruction can be given. But to expect this Court to reverse a case on the general allegation, first made here, that there was a defect in the evidence, is to expect too much.
Judgment affirmed.