Boykin v. . Barnes , 76 N.C. 318 ( 1877 )

The presumption raised by our statute that the note sued on was solvable in Confederate currency is rebutted by the facts stated in the special verdict.

The plaintiff held a note for $158.00 on one Eure given in 1860 for money loaned. In 1863, the defendants made an arrangement with Eure by which they agreed to assume the debt. They thereupon went to Miss Boykin and substituted their note for Eure's, ante-dating the note to the date of the Eure note which was then surrendered.

Clearly the new note was not given in satisfaction of the debt but was intended to make the defendants stand in the shoes of Eure and become the paymasters and subject to all his liabilities.

They put themselves in the same situation as if they had originally given the note instead of Eure.

The new note was substituted in place of the old, not at the instance or for the benefit of Miss Boykin, and no consideration passed between her and the defendants. She was content with Eure's note.

What consideration passed between Eure and the defendants does not appear, and it is not material, as the plaintiff was no party thereto

If the defendants had become the endorsers of the Eure note in 1863 when they gave their own instead, they would have been bound just as Eure was bound and not entitled to the benefit of the scale law. Summers v. McKay64 N.C. 555.

They certainly have not placed themselves in a better situation. The defendants had the right to contract to pay the Eure note just as Eure was bound to pay it and that is what they have done. State v. Brown,67 N.C. 475, does not apply; there was no novation here. The note sued on was not subject to scale.

There is no error.

PER CURIAM. Judgment affirmed.