It has been held in Massachusetts from a period earlier than the Revolution that the law will presume the giving of a negotiable note for a simple contract debt to be a payment of the debt. But the presumption has always been held to. be disputable and not conclusive. The doctrine has been illustrated by a considerable number of cases to which it has been applied. Thacher v. Dinsmore, 5 Mass. 299. Maneely v. M’Gee, 6 Mass. 143. Davis v. Maynard, 9 Mass. 242. Whitcomb v. Williams, 4 Pick. 228. Watkins v. Hill, 8 Pick. 522. Pomroy v. Rice, 16 Pick. 22. Fowler v. Bush, 21 Pick. 230. Butts v. Dean, 2 Met. 76. Grimes v. Kimball, 3 Allen, 518. Bryant v. Pollard, 10 Allen, 81. Tucker v. Drake, 11 Allen, 145. From these and other cases it appears that the presumption relates to the intention of the parties, and that a variety of facts have been held sufficient to rebut the presumption. In several of them it is held that where the debt is a note secured by mortgage, the renewal of the note is not to be presumed a payment, so as to discharge the mortgage.
In the present case, the plaintiff had a note secured by a mortgage, and, upon a settlement, he took a new note secured by a new mortgage. The new note was for a less sum than the old one, but included the balance due upon the old one. But it also appeared that there was a surety upon the old note; and that the old note and mortgage were preserved by the plaintiff with the expressed intention to discharge them when the debt should be paid ; and there were also other facts tending to rebut the presumption that the plaintiff intended to receive the new note as a payment of the old one, and to show that his prior note and mortgage remained in force, and the new note and mortgage were intended to be merely a settlement of the balance and an additional security. Such being the state of the case, the *87court are of opinion that it should have been left to the jury to weigh the conflicting presumptions, and decide what the parties in fact intended, and that it was erroneous to direct a verdict for the defendant. Exceptions sustained.