Burntrager v. McDonald. answer, if, as in this case, there is another issue upon the record under which the same evidence would be admissible.” Having reached the conclusion that there was no valid defense, it necessarily results that the court committed no error in sustaining the demurrer to the amended third paragraph. The court would have no right to stay the proceedings unless there was some valid defense. Judgment affirmed, with costs. 7. H. Brown, for appellant. BURNTRAGER v. MCDONALD. BILL OF EXCEPTIONS.—Dismissing Appeal.—A ruling of the circuit court dismissing an appeal to that court from the decision of the board of county commissioners in a proceeding to change the location of a public highway cannot be presented to the Supreme Court except by a bill of exceptions. APPEAL from the Carroll Circuit Court. DOWNEY, J.-This was a proceeding, by petition, before the board of county commissioners, by McDonald, to change the location of a public highway on his lands. Burntrager became a party by first objecting to the appointment of viewers, and secondly, by remonstrating. The result before the commissioners was favorable to McDonald. Burntrager appealed to the circuit court, where he moved to dismiss the case, and McDonald moved to dismiss the appeal. Both of these motions were overruled by the court. Then the county commissioners, who for some reason were named as defendants on the docket, moved the court to dismiss the case so far as they were concerned. Then McDonald, in writing, moved the court to dismiss the appeal. Then, Burntrager, on his motion, obtained an order on the auditor to certify up a complete transcript, and to file the Burntrager v. McDonald. original papers in the cause, some of which seem not to have been sent up by him. Then this order was made by the court: "The court being duly advised, do now order that the appeal taken herein be and the same is hereby dismissed; and to which ruling of the court said plaintiff excepts, and prays an appeal," &c. There is no bill of exceptions in the record, nor does it appear that the point was reserved in any way except as above stated. The appellee urges that the propriety of the ruling of the court is not before us without a bill of exceptions. On the other hand, the appellant insists that the exception to the ruling of the court in sustaining the written motion of the appellee to dismiss the appeal was entered of record, and that the question is fairly presented without a bill of exceptions; that all proper entries made by the clerk are to be deemed parts of the record. If it were true that the sustaining of a written motion, and an exception, would put the question on the record in such form as to save the point, still this would not avail the appellant, for the reason that it does not appear that the court sustained the written motion, or that the appeal was dismissed for the reason stated in that motion. But we think the position of the appellant cannot be sustained. It is useless to refer to many of the cases on this subject. In Aspinwall v. The Board of Commissioners of Knox Co., 18 Ind. 372, this court say, "There should have been a bill of exceptions, showing the cause of the dismissal, otherwise the action of the court will be presumed to have been correct." See, also, Conoway v. Weaver, 1 Ind. 263. The judgment is affirmed, with costs. L. B. Sims and F. H. Gould, for appellant. Ritenour v. Mathews. RITENOUR V. MATHEWS. CONTRACT.-Proposition not Accepted.-A mere proposition made by a defendant-surety in a judgment to the judgment-plaintiff, while the judgment is in full force, that if the latter will accept other sureties from the principal defendant, and release or enter satisfaction of the judgment so as to discharge said defendant-surety therefrom, he will surrender to the principal defendant a promissory note which he holds against said principal defendant, does not constitute a contract, notwithstanding the judgment-plaintiff should afterwards perform the things so to be done by him, unless said judgment-plaintiff agrees with said defendant-surety to accept such other sureties from said principal defendant, or gives said defendant-surety notice that he will act upon said proposition. APPEAL from the Tippecanoe Common Pleas. DOWNEY, J-This action was brought by the appellant against the appellee on two promissory notes executed by the latter to the former. The defendant answered in several paragraphs, but, by agreement, only the third and sixth are set out in the record. The third is as follows: That the defendant is entitled to have a surrender and full cancellation of the notes on which the suit is brought, because that in April, 1862, one Jones recovered judgment in the Warren Circuit Court against the defendant, said plaintiff, and one William Ritenour, on one or more promissory notes executed to Jones by Mathews, as principal, and Anthony and William Ritenour, as sureties for Mathews; that the judgment was for $1,969.20 and costs, that before and at the time said judgment was rendered, Mathews was in insolvent and embarrassed circumstances, and unable to pay his debts, and said sureties were in great danger of having to pay said debt; that the plaintiff owned a large body of land, on which the judgment was a lien, and was extremely anxious to be released from his liability on account of said suretyship, and to that end agreed with Jones that if Jones would accept such other sureties as defendant could procure, and release the plaintiff from the judgment, he would give up the notes on which this suit is brought to the defendant as satisfied; that in pursuance of said agreement with Jones, the defendant did procure other Ritenour v. Mathews. securities which Jones accepted, and Jones went to the town of Williamsport, ten miles, and entered satisfaction of the judgment against the plaintiff, as he had agreed to do; wherefore the defendant says that inasmuch as the agreement of Jones was for the benefit of the said defendant, he is entitled to have the benefit thereof, though the consideration for the plaintiff's promise passed from Jones. Prayer, that the plaintiff be compelled to surrender up the notes, &c. The sixth paragraph is as follows: That Jones had recovered judgment as above stated; that the plaintiff agreed with Judy and Keys that if they would become sureties for the defendant to Jones for the amount of the judgment, whereby Jones would release plaintiff, he would cancel and surrender the notes on which this suit is brought to the defendant; that Judy and Keys accepted the offer of plaintiff, became sureties for Mathews to Jones in a note for the amount of the judgment, and Jones thereupon entered a release and satisfaction for the judgment against the plaintiff, the defendant, and William Ritenour, which agreement was made and entered into for the benefit of said Mathews; wherefore the defendant says he is entitled to have said notes surrendered, &c. See 31 Ind. 31. There was a general traverse of these paragraphs of the answer. Upon the issues thus formed, there was a trial by jury, and a general verdict for the defendant, accompanied by answers to interrogatories which had been submitted to the jury. There was a motion by the plaintiff for a new trial for the following reasons: first, the court erred in refusing to give instruction number two asked by the plaintiff; second, in requiring the jury to answer interrogatories 1, 2, 3, 4, 5, and 6, asked by the defendant; third, the general verdict and answers to interrogatories are unsupported by the evidence; fourth, are contrary to law; fifth, the court erred in admitting the evidence of the defendant over the plaintiff's objection, to prove the alleged contract for the surrender of the notes; Ritenour v. Mathews. sixth, the general verdict is not sustained by sufficient evidence. This motion was overruled, and final judgment was rendered. The evidence and instructions of the court are set out in a bill of exceptions contained in the record. The facts of this case, as disclosed by the answers, which we have set out, leave an unfavorable impression upon the mind. The plaintiff had become the security of the defendant to Jones. Jones had obtained a judgment on the notes against the principal and the sureties. It was the duty of the defendant, if he would be considered an honorable, or even an honest man, to make every reasonable effort in his power to shield his security from the payment of the debt. He had no right, legally or morally, by failing to discharge the debt, and thus allowing the security, whom he should have protected, to became alarmed for his safety, to speculate upon his fears and his necessities. He did obtain other securities, and thus relieve the plaintiff from liability, and he now seeks to have the notes involved in this case satisfied because he did that which he was in every sense, as an honorable and an honest man, bound to do without any recompense therefor. But we will see how the case results. The evidence was as follows: An agreement of the parties that the third and sixth paragraphs of the answer are true, except the alleged agreement between the plaintiff and Jones in the third paragraph, and the alleged agreement between the plaintiff and Judy and Keys in the sixth paragraph. Jones testified that he held the judgment referred to, which he released on Mathews giving him Judy and Keys as security. Shortly after the judgment was rendered, the plaintiff in this case came to him and wanted an execution issued on it, which was done, which was afterwards returned unsatisfied at his instance, after finding that Mathews had no property, and that it had to come out of him. The plaintiff saw him several times after the judgment was rendered, and told |