" three to tllj:l ,ex,clusion of evldtmce, w4ich are found iJil the forty·;llr$t,. f<;>rty-seco.nd, and forty-third assignments of el'I,'()l'. The forty-first: and forty-second assignments of error are the sustaining by ·the.court of objections to the following questions asked a .witness: "Wl,\W it not gj:l:q.erally understood there in the cOIQmumty in the. falllWd winter of 1884 that he [Fennell] was selling goods at cost,l;Uld less than cost?" And "from your experience as a merchant, would you or not sayan ordinarily prudent businessman would form a partnership with another to go into his bUli!iness. without inquiring as to his mel'cantile business, Hnd examipinghis books?" ' i , ' The first question wl,\s objectionable because it sought to prove by notoriety or reputation an objective fact,-a particular fact,-in public ha(l no interest, and which cannot be proved in that way, (1 Greenl. Ev. 138; Shutte v. ·Thompson, 15 Wall. 163;) "and the second question called for the mere opinion of the opinion involving a conclusion which, if material, was an inference to be drawn by the jury from circumstances which may proven. Such evidence was' inadmissible. The fortythird assignment of error .is the exclusion of the evidence of the witness Shelton, which was "that he was engaged in the mercantile business:fl,\t Larkinsyille, .Jackson county, Ala., in 1884, and the early partqf.1885, and the time knew of C. M. Fennell engaging .in :the mercantile business at Scottsboro, in the same county; that, Pi the latter par1; of 18&4 he heard from numerous parties that¥ennell was selling out at less than cost, and that it was generaUy in the .community that Fennell was in embarrassed circumstances, a,nd would break' or fail in his mercantile business." This testimonY, if it was to any material fact, was hearsay and rumor, and the belief testified to was not shown affirmatively to. have. been the general .belief in Scottsboro, the community in which Fennell did business,where Keith resided, and where the sales by Fennell to Keith were made. It was properly excluded. The real. issue in the. c;tBe is whether Keith had notice, actual or constructive, that Fennell was insolvent or in embarrassed circumstancesat the time of the. sales by Fennell to him, and that he (Fennell) made the sales with intent to hinder, delay, or defraud his creditors. Keith paid Fennell in cash the fair, reasonable value of the goods. This fact being shown, it devolved on the plaintiffs in error, the defendants below, to show that Fennell by the transaction attempted to binder, delay, or defraud his creditors, and. t4atwhen Keith purchased .from him he knew that such was his or had information. of suspicious circumstances, which ought ,to, have led him to make inquiry, and that if he made such inquj,l'y, llnd: followed it up, it would have led to knowledge of .. Stix v. Keith, 85 Ala. 465, 5 South. .Rep. 184; SJripper v. Reeyes, 93 Ala. 332, 8 South. Rep. 804. There was much evidence tending to show that Fennell's intent in making the sales was fraudulent, and in this respect it may
RINDS 11. KEITR.
tie conceded that .the plaintiffs in error discharged the burden of proof resting on them. But this ,fraudulent intent is immaterial unless they traced to Keith knowledge of it, or information of suspicious circumstances, which ought to have 1e4 him to make inquiry, and which, if followed up, would have led to knowledge of such fraudulent intent. The burden of showing such knowledge or information of such suspicious circumstances was, as we have Baid, on the plaintiffs in error, and, in our opinion, they have failed to discharge it. We have qeen unable to find in the evidence any fact or circumstance tracing to Keith knowledge of Fennell's insolvency or fraudulent intent, or information of any suspicious fact or circumstance, which ought to have put him on inquiry, and which, if followed up, would have led to such knowledge at or prior to the sales. The bill of exceptions sets out all the evidence in the case and that which was excluded. If the whole evidence, with all in· ferences that the jury could justifiably draw from it, was insufficient to support a verdict for the defendants, now plaintiffs in error, the case will not be reversed, although there may have been errors committed by the court below in rulings on evidence, in charges given, and in the refusal to give certain charges requested by the defendants. Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. Rep. 322; Railroad Co. v. Moore, 121 U. S. 570, 7 Sup. Ct. Rep. 1334. Our opinion is that the verdict waB not only responsive to the evidence and the law applicable to the case, but that, in view of all the evidence, no other verdict could properly. have been rendered by the jury. rrhe judgment is affirmed. On Petition for Rehearing.
(May 30, 1893.)
TOUL'MIN, District Judge. Rule 29 of this court provides that a petition for rehearing must be supported by certificate of counsel. The petition in this case is not supported by such certificate, and. for that reason should be denied. We, however, will not rest our denial of the petition solely on this ground, but will consider the petition on its merits. The counsel for plaintiffs in error claim that the court erred in holding that evidence that it was "generally understood in the community that Fennell was selling goods at cost" was inadmissible, and that the court was wrong in considering that the objective fact sought to be thus proved was that Fennell was selling goods at cost. They claim that what they sought to prove by this evidence was notice to Keith of the fact that Fennell was thus selling goods by showing that it was a matter of notoriety in the community, and that this fact was a suspicious circumstance, which ought to have put Keith on inquiry. If Fennell's financial embarrassment or insolvency was proved by proper evidence, then proof of its notoriety in the com·