Cobb v. . Gray

Faircloth, J. (After stating the facts as above.) We agree with His Honor in holding that said note is not liable to the scale. The case of Cable v. Hardin, 67 N. C. 472, is not in point. There, it was held from the manifest intent of the parties that the transaction was a new loan, and the scale applied. Here, the debtors did not propose or intend to pay the whole debt, but only a part of it; and the new note was not made for the benefit of the creditor, nor upon any idea of a loan of that amount of money, but because there was not room on the old note to enter the credit. No. Yation is not to be presumed, unless the intention to novate •clearly results from the act of the pai’ties. The intention to •do so does not appear in this ease, but it appears to the contrary; and the transaction in August, 1866, between the same parties shows that they did not intend or understand that the scale was applicable. The over-payment is not alleged to have been made by mistake, &c. The case of King v. W. & W. R. R. Co. 91 U. S. Rep. 1, does not apply for the reason that the contract was that payment should be in Confederate currency. No error. Per Curiam. Judgment affirmed.