McCAY, J.
1. The consideration of the note on which this fa. was founded was in no sense, even according to the defendant’s own testimony, the slaves which he had bought from Freeman. The true consideration moving him to give the note, was the debt which he owed Freeman, and the consideration moving Tumlin to take the note was the loss to him of his debt against Freeman. It was not the fact that Dever had gotten negroes from Freeman that induced him to give this note. It was the fact that he owed Freeman a debt, and Freeman was willing to discharge that debt if Dever would give his note to Tumlin. The fact that- Dever’s debt to Freeman was for negroes, had nothing to do with it. If Tumlin, in consideration of Dever giving this note, discharged the debt which Freeman owed him, it makes no difference whether the debt from Dever to Freeman was a good or a bad debt. The note to Tumlin would be a valid debt, even if he, Dever, got no advantage at all from the transaction. The loss to Tumlin of his debt against Freeman would be a sufficient consideration, would in fact be the consideration, and the rights of the parties in this case turn on just this question, to' wit: do the facts of this case, as they appear in the record, [426]*426show, conclusively, that Tumlin, by the transaction as it is admitted to have occurred by both the witnesses, lost his right to go against Freeman on his debt for the land, etc. ?
Suppose after this transaction Tupilin had sued Freeman on the land debt, surely Freeman could have replied, in the very words which Tumlin uses in his testimony in this case: “You exchanged the debt you had on me for the debt I had on.Dever, and you took his note for the amount,” or he could have replied in the words of Dever: “Dever owed me and I owed you, at my request and with your consent, Dever gave his note to you for the amount.” So, too, if Freeman had sued Dover, he could have replied: “at your request I gave my note to Tumlin, he has it, and if I pay you, I would still have to pay the note I gave to Tumlin.”
It is contended, however, that notwithstanding Dever could successfully make this reply to an action by Freeman against him, that it is yet true that the note .from Dever to Tumlin has no other consideration than the slaves, that the change of obligees does not change the consideration, that the only thing moving Dever to make the note was the negro slaves.
If there was no loss to Tumlin, I am inclined to think this reasoning would be correct. The mere fact that the debt from Dever to Freeman was at an end, would not alter the consideration of the new note. In other words, if Tumlin only took Dever’s note as an additional security for his debt due from Freeman, however the debt from Dever to Freeman might be at an end, the consideration of the new note would be the same as the old one.
If Freeman should pay his debt to Tumlin, he would have a right to the possession and control of the Dever note. But it is to my mind absolutely conclusive, from the evidence, that the necessary legal effect of the transaction, as it is proven to have taken place, was to discharge the debt due from Freeman to Tumlin. Tumlin swears that he “exchanged” his debt on Freeman for the note on' Dever, that he took Dever’s note “in place” of Freeman’s.
It is true Dever does not say so much. He merely says, that, Freeman owing Tumlin and he, Tumlin, at Freeman’s [427]*427request, gave Tumlin the note for the amount. He does not say whether there was any giving up by Tumlin of his debt on Freeman or not.
It is contended that, as it does not appear from Dever’s account that there was a giving up by Tumlin of his debt on Freeman, it was the right of the jury to pass upon the question, and the Court erred in his charge, as he did not tell them that it must appear, from the proof, that' Tumlin gave up his claim on Freeman. It must be noticed, however, that Dever does not deny that Tumlin was to give up his claim on Freeman. He simply says nothing about it. He states the fact, that he owed Freeman and Freeman owed Tumlin and at Freeman’s request he gave his note to Tumlin. , So far as the evidence of Dever goes, it has no bearing at all upon the question whether or not Tumlin gave up his debt on Freeman by affirmative agreement. Dever’s testimony does not deny it or affirm it. But Tumlin’s evidence is conclusive on this point. He says he exchanged, debts, he took Dever in place of Freeman. He does not contradict Dever. He states a fact about which Dever says nothing, and about which, it is probable, at the time, he cared nothing. The jury and the Court were bound to take this evidence for true. It was under oath, it was uncontradicted, it was in perfect harmony with the transaction.
Dever’s statement that the note sued on was given for slaves, is necessarily to be taken with his own explanation of what he means by it; and when thus taken, it is in perfect harmony with Tumlin’s statement. He, Dever, states the facts so far as he knows them. What is the effect of those facts is a question of law, and his statement that the consideration of this note was slaves, is a conclusion of law and not evidence.
The jury, under the uncontradicted facts, were bound to come to the conclusion that Tumlin gave up his debt on Freeman, because he so swore, and there was not a particle of evidence to the contrary. If this be so, the facts of the case fully justify the charge of the Judge on this point. The consideration of the new note was wholy. different from [428]*428either of the others. The loss to Tumlin of his debt on Freeman, and the discharge of Dever’s debt to Freeman, was the consideration, and the jury was bound to so find.
But in our judgment it was not necessary to prove, affirmatively, an agreement between Tumlin and Freeman that the land debt should be discharged or satisfied in this way. The discharge, satisfaction, of both the old debts follows, by operation of law, the giving of á new note under the circumstance set forth in the charge of the Judge. This is not the case of a creditor taking from his debtor the note of a third person with nothing more. In that case, although the doctrine is disputed, (Chitty on Contracts, 661 and Notes,) yet the weight of authority and our Code undoubtedly is, that the debt is not discharged unless it be so expressly agreed. Peter vs. Beverly, 10 Pet. 567; Code sec. 2816. But here the three parties come together. Freeman declines to take Dever’s note and Dever gives his note to Tumlin. Freeman has no evidence at all of any debt from Dever, and Tumlin has Dever’s note payable to himself. Had the parties simply intended to strengthen Tumlin’s security, it is hardly conceivable that it would have been agreed all round that Tumlin should be the payee in Dever’s note. On the supposition that Tumlin keeps his debt on Freeman, the strange fact would exist, that Tumlin has two notes payable to himself, of different persons, for the same debt. Such a result is not presumable. It is contrary to the first principles of human nature. Had it not been the clear intent of the parties that there should be a novation, Freeman would have taken some showing. Assuming that the debt from Freeman to Tumlin still existed, we make Freeman guilty of the folly of consenting that Tumlin shall take Dever’s note payable to himself and keep also his, Freeman’s, note. This is the very case put by Butler, J. in Patlock vs. Harris, 3 T. R., 180.
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McCAY, J.
1. The consideration of the note on which this fa. was founded was in no sense, even according to the defendant’s own testimony, the slaves which he had bought from Freeman. The true consideration moving him to give the note, was the debt which he owed Freeman, and the consideration moving Tumlin to take the note was the loss to him of his debt against Freeman. It was not the fact that Dever had gotten negroes from Freeman that induced him to give this note. It was the fact that he owed Freeman a debt, and Freeman was willing to discharge that debt if Dever would give his note to Tumlin. The fact that- Dever’s debt to Freeman was for negroes, had nothing to do with it. If Tumlin, in consideration of Dever giving this note, discharged the debt which Freeman owed him, it makes no difference whether the debt from Dever to Freeman was a good or a bad debt. The note to Tumlin would be a valid debt, even if he, Dever, got no advantage at all from the transaction. The loss to Tumlin of his debt against Freeman would be a sufficient consideration, would in fact be the consideration, and the rights of the parties in this case turn on just this question, to' wit: do the facts of this case, as they appear in the record, [426]*426show, conclusively, that Tumlin, by the transaction as it is admitted to have occurred by both the witnesses, lost his right to go against Freeman on his debt for the land, etc. ?
Suppose after this transaction Tupilin had sued Freeman on the land debt, surely Freeman could have replied, in the very words which Tumlin uses in his testimony in this case: “You exchanged the debt you had on me for the debt I had on.Dever, and you took his note for the amount,” or he could have replied in the words of Dever: “Dever owed me and I owed you, at my request and with your consent, Dever gave his note to you for the amount.” So, too, if Freeman had sued Dover, he could have replied: “at your request I gave my note to Tumlin, he has it, and if I pay you, I would still have to pay the note I gave to Tumlin.”
It is contended, however, that notwithstanding Dever could successfully make this reply to an action by Freeman against him, that it is yet true that the note .from Dever to Tumlin has no other consideration than the slaves, that the change of obligees does not change the consideration, that the only thing moving Dever to make the note was the negro slaves.
If there was no loss to Tumlin, I am inclined to think this reasoning would be correct. The mere fact that the debt from Dever to Freeman was at an end, would not alter the consideration of the new note. In other words, if Tumlin only took Dever’s note as an additional security for his debt due from Freeman, however the debt from Dever to Freeman might be at an end, the consideration of the new note would be the same as the old one.
If Freeman should pay his debt to Tumlin, he would have a right to the possession and control of the Dever note. But it is to my mind absolutely conclusive, from the evidence, that the necessary legal effect of the transaction, as it is proven to have taken place, was to discharge the debt due from Freeman to Tumlin. Tumlin swears that he “exchanged” his debt on Freeman for the note on' Dever, that he took Dever’s note “in place” of Freeman’s.
It is true Dever does not say so much. He merely says, that, Freeman owing Tumlin and he, Tumlin, at Freeman’s [427]*427request, gave Tumlin the note for the amount. He does not say whether there was any giving up by Tumlin of his debt on Freeman or not.
It is contended that, as it does not appear from Dever’s account that there was a giving up by Tumlin of his debt on Freeman, it was the right of the jury to pass upon the question, and the Court erred in his charge, as he did not tell them that it must appear, from the proof, that' Tumlin gave up his claim on Freeman. It must be noticed, however, that Dever does not deny that Tumlin was to give up his claim on Freeman. He simply says nothing about it. He states the fact, that he owed Freeman and Freeman owed Tumlin and at Freeman’s request he gave his note to Tumlin. , So far as the evidence of Dever goes, it has no bearing at all upon the question whether or not Tumlin gave up his debt on Freeman by affirmative agreement. Dever’s testimony does not deny it or affirm it. But Tumlin’s evidence is conclusive on this point. He says he exchanged, debts, he took Dever in place of Freeman. He does not contradict Dever. He states a fact about which Dever says nothing, and about which, it is probable, at the time, he cared nothing. The jury and the Court were bound to take this evidence for true. It was under oath, it was uncontradicted, it was in perfect harmony with the transaction.
Dever’s statement that the note sued on was given for slaves, is necessarily to be taken with his own explanation of what he means by it; and when thus taken, it is in perfect harmony with Tumlin’s statement. He, Dever, states the facts so far as he knows them. What is the effect of those facts is a question of law, and his statement that the consideration of this note was slaves, is a conclusion of law and not evidence.
The jury, under the uncontradicted facts, were bound to come to the conclusion that Tumlin gave up his debt on Freeman, because he so swore, and there was not a particle of evidence to the contrary. If this be so, the facts of the case fully justify the charge of the Judge on this point. The consideration of the new note was wholy. different from [428]*428either of the others. The loss to Tumlin of his debt on Freeman, and the discharge of Dever’s debt to Freeman, was the consideration, and the jury was bound to so find.
But in our judgment it was not necessary to prove, affirmatively, an agreement between Tumlin and Freeman that the land debt should be discharged or satisfied in this way. The discharge, satisfaction, of both the old debts follows, by operation of law, the giving of á new note under the circumstance set forth in the charge of the Judge. This is not the case of a creditor taking from his debtor the note of a third person with nothing more. In that case, although the doctrine is disputed, (Chitty on Contracts, 661 and Notes,) yet the weight of authority and our Code undoubtedly is, that the debt is not discharged unless it be so expressly agreed. Peter vs. Beverly, 10 Pet. 567; Code sec. 2816. But here the three parties come together. Freeman declines to take Dever’s note and Dever gives his note to Tumlin. Freeman has no evidence at all of any debt from Dever, and Tumlin has Dever’s note payable to himself. Had the parties simply intended to strengthen Tumlin’s security, it is hardly conceivable that it would have been agreed all round that Tumlin should be the payee in Dever’s note. On the supposition that Tumlin keeps his debt on Freeman, the strange fact would exist, that Tumlin has two notes payable to himself, of different persons, for the same debt. Such a result is not presumable. It is contrary to the first principles of human nature. Had it not been the clear intent of the parties that there should be a novation, Freeman would have taken some showing. Assuming that the debt from Freeman to Tumlin still existed, we make Freeman guilty of the folly of consenting that Tumlin shall take Dever’s note payable to himself and keep also his, Freeman’s, note. This is the very case put by Butler, J. in Patlock vs. Harris, 3 T. R., 180. “Suppose A owes B £6100, and B owes C £6100, and the three meet, and it is agreed between them that A shall pay C the £6100. ‘ B’s debt is extinguished and C may recover that sum against A.”
That ease, as well as the case at bar, is not the mere trans[429]*429fer of a debt or delivery of the evidence of it from one man to another. It is an agreement that the debtor is willing to pay the debt to a third person. Without doubt, to make a good novation between three, the two original debts must be discharged. If the original debts still exist, it is no novation ; but, like any other agreement, this discharge may follow, from the nature of the transaction, and it need not be proven that there was a distinct agreement to discharge. If the new promise is not a collateral one, that is, not a mer.e agreement to pay^ on the failure of the debtor,» but to pay directly, then it is a novation.
2. As to the objections to theft, fa. for want of a seal and because it is signed by the deputy clerk, etc. ■ We think (and in this the Court is unanimous,) they were rightly overruled. They would not, in our. judgment, be good if they had been taken in the affidavit.
3. But here the parties were at issue on the facts set forth in the affidavit, and it was not competent for the defendant, on the trial of that issue, to make new objections to th eft. fa. or judgment. The fi. fa. was not evidence to be introduced by the plaintiff. It was the paper, the Court’s own order, which the affidavit undertook to impugn, a part of the pleadings, and was before the jury as a part of thereof.
4i Without doubt the Court erred in charging that the plea to the jurisdiction was not good. Had there been any possible dispute as to the effect of the “exchange” of debts, as testified to by Tumlin, this error of the Court would demand that the judgment be reversed. But if we have come to the proper conclusion as to the novation, this charge, though wrong, did no harm, because there was no evidence to support the plea; of the facts there is no disptue. Tumlin and Dever agree in every particular. It is true Tumlin adds a fact which Dever says nothing about, but which is perfectly in harmony with Dever’s statements. Dever’s assertion that this note was given for negroes is to be taken with all he says. Taking all he says, we are of the opinion that, as a conclusion of law, it was not so given, and there was, therefore, no evidence for the jury to consider under the plea.
Judgment affirmed.