The exceptions to the report of the referee have not been passed on or considered, and the report has not been disturbed.
The referee finds that the plaintiff agreed to credit the note “which he held against defendant with the sum of $150, upon the said J. T. Ponder, 0. ~W. Ponder, and Mrs. Lizzie Miller paying the balance due thereon, which they agreed to do, and which was ascertained to be $230, the said J. T. Ponder and Mrs. Lizzie Miller to pay the sum of $57.50 each, and the said O. W. Ponder to pay the sum of $115; and that all of said children should make and execute a deed of trust upon their said land in favor of their said mother to secure the sum of $150 annually for her support and maintenance, each share thereof to be charged with the sum of $25”; and further, that “Mrs. Miller failed to pay anything on said note on said 26 November, 1910, and has not yet paid anything on said note to the plaintiff or another person for him; that said deed in favor of said Mrs. Miller has never been .delivered, but was placed in the hands of G. W. Waycaster, to be held by him un.til Mrs. Miller should pay plaintiff the sum of $57.50 on said note; and the plaintiff, prior to the bringing of this suit, requested and demanded payment thereof from both Mrs. Miller and the defendant in this action.”
According to these findings, the plaintiff retained his note against the defendant, and did not agree to accept the promises of Mrs. Miller and others in settlement of it, but to enter the credits when the money was paid.
If so, the liability of the defendant continued, and upon the report the plaintiff is entitled to judgment against her for the amount found due, and costs.
*56If, upon bearing .tbe exceptions, tbe finding by tbe referee shall be reversed, and it shall be'found that a settlement was made by tbe terms of which tbe defendant was discharged from liability on tbe note, it would be proper to enter judgment against tbe plaintiff for costs.
We conclude, therefore, that there is error, and tbe cause is remanded to the end that tbe exceptions may be beard and passed upon.