after stating the case as above, proceeded : — This Court is of the opinion, that as Garner was surety only, and his intestate the principal in the note at 'the Raleigh Branch of the Newbern Bank, and discharged that note by means of cash advanced, and a discount of his own note, the testimony of Wetmore, if believed, proved a payment by the administrator, of the nine hundred dollar note; and that there was nothing in the evidence which could legally authorize the jury to infer that Garner intended to continue the debt as the debt of his intestate. We are of the opinion that there should be a new trial, which is granted.

PeR Cumam. Judgment reversed.