
    TERRY v. ROBBINS.
    (Filed April 16, 1901.)
    1. CONTRACT — Married Women — Common Law — Presumptions— Mortgages.
    
    In the absence of proof to the contrary, the contract of a married. woman made in New Jersey'will be presumed to be voiu, as at common law.
    2. NOVATION — Contract—Payment—Intent—Questions for Jury— Mortgages.
    
    Whether a bond given in payment of an installment upon a mortgage is a novation, is a question for the jury.
    ActioN by Harvey Terry against T. IT. Robbins and Adelia S. Robbins his wife, and Lillian E. Naylor, heard by Judge A. L. Ooble and a jury, at March Term, 1900, of Pas-quotank County Superior Court. From a judgment for the defendants, tire plaintiff appealed.
    
      
      Shepherd & Shepherd, and. Pruden & Pruden, for tbe plaintiff.
    
      Busbee & Busbee, for tbe defendants.
   MONTGOMERY, J.

This action was for tbe foreclosure of a mortgage upon real estate executed by defendants Tbomas IT. Robbins and bis wife to tbe plaintiff on tbe 15tb of January, 1896, tbe plaintiff alleging that -the first two payments of $2,000 each were past due and unpaid, and that according to the 'terms of tbe mortgage the whole debt was due.

The defendant averred in his answer, and introduced evidence on tbe trial to that effect, that the first note of $2,000 had been paid, and that it was provided in tbe mortgage that upon tire payment of that installment the plaintiff should execute to the defendant Robbins 'a release of a certain part of tbe land described in the mortgage, and that tbe plaintiff bad refused to release tbe land and that therefore tbe defendant bad committed no breach of bis contract in tire nonpayment of the second installment.

The alleged payment of the first $2,000 insitallmeait was by the bond of the defendant Robbins, and his wife, the other defendant (she not having been a party to the original obligation), substituted for the first installment of $2,000 in full discharge and extinguishment thereof — the bond being delivered to the plaintiff and received by him in full satisfaction of the said installment. The bond was executed in New Jersey and was made payable in Keyport in the same State.

His Honor was requested by tbe plaintiff to instruct tbe jury that if they believed the evidence in the ease they should answer the sixth issue “has tire defendant Robbins made default upon the mortgage set out'in the complaint?” “Yes.” The instruction was refused and the plaintiff excepted and appealed.

We think his Honor committed no error in refusing to give tihe instruction. As was contended by the plaintiff, that the addition of the wife’s name to the new bond gave it no additional weight or worth, because it was void, so far as she was concerned. There was no evidence going to show that the common law had been changed or repealed in the State of New Jersey, as to the power of married women to make-contracts, and the presumption therefore is that the common law prevailed in New Jersey at the time of the execution of the bond, and by the common law all such contracts by a feme covert were void. Gooch v. Faucett, 122 N. C., 268; Griffin v. Carter, 40 N. C., 413.

But the bond of Robbins was valid and binding on him, and whether or not there was a novation by the substitution of the bond for the installment under the mortgage was a question for the jury under proper instructions from the Court. A prior existing debt can be extinguished by the acceptance of a promissory note or bond, if it is so intended by the parties, the only question, being as to the proof of such intention. Generally, unless it is otherwise specially agreed, if the holder of a promissory note takes a new note for the original debt, that is prima, facie a conditional payment only, that is, the original debt will be extinguished upon the payment of the substituted note. But Judge Story in liis work on Promissory N otes, section 404, says: “Promissory note's either of the maker himself or of a third person, are often received by the holder or the creditor in payment of the original note or debt due by the maker. And the question often arises when and under what circumstances the receipt of a substituted note will be deemed a due and absolute extinguishment or satisfaction of the original debt or note, or not. In general, by our law, the receipt of a promissory note of the maker or of a third person will he deemed a conditional satisfaction or extinguishment only of the original debt or note of tbe maker (that is, if the substituted note is regularly paid), unless otherwise agreed between tlie parties. But if it is agreed between the parties, as it well may be-, that the substituted note shall be an absolute payment of the original debt or note, then it will operate as an absolute satisfaction and extinguishment thereof. Sherly v. Mandeville, 6 Crunch 253, 264; 1 Jones on Mortgages, see. 926.

There were other exceptions made to the charge of his Honor, but they related'to the question we have just discussed and need m> further consideration. The defendants’ objections to the evidence were properly overruled. The motion for a new trial because of evidence discovered since the trial of the case is refused.

No error.  