APPEAL from the Franklin Common Pleas.

Suit by tbe appellants, Heeg and Keisler, against the'appellees, Weigand and Schrunk, on a promissory note for-four hundred dollars, executed September 13th, 1867, by the appellees to one Roberts, and by him assigned' to • the-appellants, without recourse.

The appellee Schrunk answered separately, in two-para-graphs, the first admitting that he signed the note, but alleging that he signed it only as surety for said Weigand; that it was executed by them in consideration of the delivering up to said Weigand or cancellation of a certain promissory note for four hundred dollars, then held by said Roberts as payee, on which said Weigand was principal aud the appellants were sureties; that said Roberts, at the time he received the note sued on, knew that it was executed to him by the appellees for the purpose of obtaining said other note; that both notes were for the same debt; that Roberts refused to receive the note in suit in lieu of said other note, but retained both notes in his possession until, on the 2d of January, 1868, the appellants received from said Roberts said note on which they were sureties, ¡and gave Roberts their joint note for a like amount; that Roberts then assigned to the appellants the note in suit, without recourse on him, for no consideration whatever, and ■without the knowledge or consent of the appellees.

The second paragraph of the answer of Sehrunk is like the first, except the -omission of the allegation, in the alternative, as to the cancellation of the note on which the appellants were sureties, and it avers that said joint note executed 'by the appellants to Roberts was given in lieu of and to lift said note of Weigand, on which they were sureties, •which Roberts delivered to them, and then assigned to -.them the note in suit, without recourse on him, for no consideration, and released them as sureties; and that both said notes of Weigand were for the same debt of four hundred dollars due said Roberts for money loaned by him to •said Weigand.

The appellants demurred to each paragraph of the answer of-Sehrunk; the demurrers were overruled, and the appellants-excepted.

To 'both paragraphs of this answer the appellants replied ■in three paragraphs, the first of which, the general denial, was.afterwards withdrawn.

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