Opinion op the Court by

The allegations in the answer, that the new notes with surety were accepted as satisfaction of the debt previously secured by mortgage, were admitted by the demurrer. And these allegations are, as thus admitted, sufficient for waiving the mortgage. The demurrer ought therefore to have been overruled.

It seems to us also that the allegations and proof as to the contract for lumber, and the delivery of it on the bank of the Ohio, prima facie entitle Lackey to at least the value of so much as was lost to him.

Wherefore, the judgment is reversed and the cause remanded for further proceedings.