After a very full examination of the statutes and common law upon the question, I am entirely satisfied that the plaintiff below had no right, under the circumstances, to discontinue his action as to Withers and to go on against Moore & Jones ; and I think the whole action was discontinued by the discontinuance as to Withers. But a majority of the court think differently, and that there was no error on that point.
2. We all think that parol evidence was not admissible to prove that it was the agreement or understanding .ef the parlies that the money secured by the writing obligatory should be paid in North Carolina. The doctrine is so stated by Judge Story, in relation .to promissory notes. — Story on Prom. Notes, § 49. And we can see no difference in this respect between notes and bonds for the payment of money. This is a question of interest and not of usury. And as the bond was made and delivered in Alabama and.not made payable elsewhere, it is subject, as to interest and otherwise, to our laws, and it is a general principle that the legal effect of an instrument -cannot be -varied by parol evidence. — 3 Stew. 273. Parol evidence was competent to prove that the bond was made here, so as to show that its validity and effect are to be determined under our laws. The place where it was made being ascertained, wc look to the face of the bond to ascertain the rate of interest, as to which the bond itself is silent. But its effect is the same as if it had contained a *214stipulation for Alabama interest. Had such a stipulation been inserted, parol evidence of an inconsistent one would haye been clearly inadmissible; and yet there is no difference in effect between the stipulation implied by law, and one expressly stated. There was no substantial error, we think, in the ruling of the Circuit Court on this point. The judgment is affirmed.