#### ELIZABETH BOYKIN v. BARNES & GODWIN.

*Contract — Seale — Confederate Curreney.*

Where A was indebted to 0 by note dated September, 1860, and B in 1863 by agreement with A executed his note to 0, ante-dated as of the date of the original note and in substitution therefor; *Held,*that it was not subject to the scale of deprecation, &c.

*¡{Summers*v. *McKay,*«4 N. 555; *State*v. *Brown,*67 N. 0. 475, cited, distinguished and approved )

Civil ActioN, tried at Fall Term, 1875, of WilsoN Superior Court, before Seymour, J.

This action was commenced in a Justice’s Court by the plaintiff against the defendants for the recovery of $158 and earned by appeal to the Superior Court.

The plaintiff held a note against one D. *W.*Eure for said sum dated September 20th, IS JO. The defendants bought a Turpentine Distillery of said Eure on the 13th of August, Í863, and at his (Eure’s) request executed a note for said sum ante-dating the same so as to correspond with the original note. Thereupon at the request of the defendants Eure delivered this note to plaintiff and took up his own note and cancelled it.

The defendants insisted .that if plaintiff was entitled to recover at all, the note should be subjected to the scale as of August, 1863.

The jury returned a special verdict subject to the opinion of the Court on the question of scale.

Upon this His Honor ruled against defendants and gave judgment in favor of plaintiff for the amount of the note and interest. Appeal by defendants.

No eounsel for plaintiff. ■

*Messrs. Smith $• Strong,*for defendants,

cited *Green*v. *319Brown, 64, N. C. 553 ; *Summers*v. *McKay, Ibid*555 ; *Howard*v. Beatty, *Ibid*559 ; *Cable*v. *Ilardin,*67 N. C. 472.

Bynum, J.

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 Boylciu 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. *McKay*64 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 *320not apply ; there was no *novation*here. • The note sued on was not subject to scale.

There is no error.

Per Curiam. Judgment affirmed-