This was an action to foreclose a mortgage for $500, dated June 22, 1842, given by the defendant Swezey, to James C. Beeve, and by him assigned to the plaintiff. The defendant alleged in defence, that the mortgagee took and received $50 over and above the legal rate of interest for $450, which was all that the mortgagee ever paid, or that the defendant ever received for the mortgage.

The cause was tried before a jury, and on the trial the defendant, to sustain his answer, offered to give evidence of the declarations of the mortgagee, made while he was the owner of the mortgage. This evidence was objected to and excluded.

After the judge had delivered his charge to the jury, the defendants’ counsel requested him to charge them “that if they found that, at the time of the delivery *154of the bond and mortgage, Reeve did intentionally withhold $50, it was evidence, unexplained, of a corrupt and usurious agreement.” The judge declined so to charge, but instead thereof, charged them that the presumption was in favor of the legality of the transaction. “To which refusal, and to the whole of the charge, the defendants’ counsel excepted.” The jury found in favor of the plaintiff. •

Held, that evidence of the declarations of the mortgagee was properly excluded.

That the exception to the affirmative part of the charge of the judge was too general to raise any question for review.

That his refusal to charge, as requested, was correct. That the intentional withholding of $50 by the mortgagee, unexplained, was not necessarily evidence of a corrupt and usurious agreement. That the law will not presume an unlawful agreement from a fact which is equally consistent” with a lawful purpose. That it was for the jury to determine the purpose for which the $50 was withheld, if withheld at all.

(S. C., 8 N. Y. 276.)