It would be going very far to say that, in any sense of the evidence, the note sued on was a mere renewal of the old one. If this was the mere consideration set up by the plaintiffs, to-wit: the settlement of the suit for the cotton, then it is clearly a debt contracted since June, 1865. But even if the note was only given in settlement of the contract for the purchase of the negroes, this was not a renewal. There was a new agreement in any event; there was a settlement of the amount to be paid; an adjustment of the value of Confederate money; a change of the specific articles agreed upon into their value in United States currency. This we do not think was a renewal but a new contract, having the old one as a basis and object, but entirely a different contract. We do not think, therefore, that this contract comes within the Act of October, 1870.
2. But, if the defendant’s account of the consideration of the note is the true one, we think the consideration of this note is slaves, and that the Court erred in not presenting to the jury this view of it.
If the consideration was the settlement of the value of the cotton, as a matter of course the slaves was not the consideration. But, if this note is an adjustment, by the parties, of the amount still due for the negroes, we do not see *133how to escape from the conclusion that the consideration was the negroes.
To make out a case of novation, it is not enough that a new party, who is only a security, has been introduced. Strictly, under the statute, (Code, section 2682) to make a case of novation, the obligation must be due to a new party. At any rate, the old contract must be at an end. As this case presents itself, the payee is the same; the executors stand in the place of the testator, and the old debt is still of force — that is, the old debt as finally settled. The note is only the evidence of it. Nobody has been discharged; the only change of parties has been to add the security, who is a mere gratuitous party, not interested in the consideration.
We express our opinion on the facts. We simply mean to say that, if the defendant’s account of the giving of the note be the true one, the consideration of the note is slaves, and they were entitled to have the law presented to the jury in the aspect of the case as presented by the evidence introduced for the defense.
Judgment reversed.