
    Ennis and Reynolds, Adm'r, v. Crump.
    To entitle a party as surety to the privilege under the statute of .not being sued first he must havo.contmeted and been sued as surety.
    Where the principal is dead the surety may be sued alone in the first instance.
    The cases of Scott v. Dewees (2 Tex. li., 153) and Ritter v. Hamilton (4 Tex. li., 325) cited and approved. (Note 13.)
    Appeal from Austin. This was a suit brought by the appellants as administrators of George W. Reynolds against William E. Crump and John Coker, on a joint and several promissory note, payable to Cornelius Ennis, administrator of A. J. Reynolds, one of the plaintiffs, and indorsed by him to Cornelius Ennis and E. C. Reynolds, administrators of G. W. Reynolds. At the Fall Term, 1848, the defendants answered separately, each by a general denial. At the Spring Term, 1S49, the death of the defendant Coker was suggested and the plaintiff discontinued as to him. At the same term the defendant Crump, by leave of the court, filed an amended plea alleging that the note sued on was given for property purchased at an administrator’s sale of the effects of A. J. Reynolds, deceased, by the defendant Coker, who was the principal, and that he, Crump, was but a surety upon the note. In Support of this plea he propounded interrogatories to the plaintiffs. The plaintiffs excepted to the amended plea and the iinnexed interrogatories; but their exceptions were overruled. The plaintiffs gave in evidence the note sued on; and the interrogatories, not having been answered, were read to the jury by the defendant and permitted to be taken as confessed. ,
    The court instructed the. jury that *• if the defendant Crump was only surety, they must find for the defendant; and that a surety could not.be sued unless the principal was first or simultaneously sued.”
    Hunger, for appellant.
    I. There was error in overruling the exceptions to the amended plea of defendant Crump—
    1st. Because, admitting the suretyship, the principal (Coker) was dead, and the plaintiffs had, therefore, a right to dismiss as to him and proceed directly against the surety. (Scott v. Dewees, 2 Tex. R., 153.)
    2d. Because suretyship is no defense to a suit on a joint and several promissory note, (Ritter v. Hamilton, 4 Tex. R., 325; 2 Tex. R., 340; Story Eq., sec. SS3 a; Burge on Suretyship, pp. 8, 416; 10 Pet. R., 257, 266; 14 Id., 201 208; 5 Taunt., 551; 9 S. & R. B., 229; 12 Id., 3S2;) and where it is allowable at all, it is mere matter of defense, and defendant must plead and prove that the principal is within the jurisdiction of the court, &c. (2 Tex. R., 404.) The pica not making these averments, the exception should have been sustained.
    3d. Because, the cause of action being a joint and several promissory note indorsed to the plaintiffs before maturity, the plea did not allege that at the time of its indorsement to the plaintiffs they hail notice that the defendant was merely a surety. (5 Ham. R., 207; 4 I\T. li. R., 221; 6 Id., 30.)
    II. It was error to admit parol testimony to show that Crump was surety. (2 Tex. R., 340; 2 Story Eq., sec. SS3 a; 10 Ret. R., 257, 266; 14 Id., 201, 203; 5 Taunt., 551; 1 M. & W. R., 5G8; 4N. II. R., 221; 6 Id., 30; 3 Rob. It., 258; 12 Id., 1S3; 2 Caí. Ca. E., 30.)
    This case is not within the principle decided in the case of Smith v. Doalc. Títere the note was in the hands of tito payee, and there was an ambiguity apparent on the face of it. In tiiat case two onljv had signed, and it was understood between one who liad in fact signed as surety and the payee that another was to sign; which third person never signed. There was a fraud on lite right of tito"surety. The parties had a right to make their own contract; they did so; and that contract was to be signed by another. The contract was consequently incomplete. It was not a contract until tiie third persou signed; and the note should have been returned. This case does not show a different contvact from the one written, but that there was no contract unless another signed, and that tho-payee knew it.
    The note in this case is in the hands of indorsees, and there is no ambiguity about it.
    Parol testimony is admissible to explain an ambiguity in a contract under seal, not to vary it. (2 Tex. R., 432.) Neither our system nor common sense recognizes any common-law technical distinction between sealed and unsealed instruments. The only recognizable distinction is bei ween written ami unwritten contracts. Written contracts, being formed witli deliberation, and certain, should he conclusive, unless attacked on the ground of fraud, &c., or necessary to he explained for ambiguity.
    Local customs may be proved to explain terms in a written contract, not lo alter its legal effect. (Dewees v. Lockhart, 1 Tex. R., 533.) Parol testimony not admissible in law or equity to vary a written instrument. (8 Wheat., 174.) The best evidence must be given. (Taylor v. Riggs, 1 Pet., 591.) The note signed by the parties is better evidence than parol testimony.
    III. The instruction to the, jury, “that if they believed the defendant Crump was only surety they must find for the defendant, and that a surety could not he sued unless the principal was first or simultaneously sued ” was erroneous; because, Crump having contracted as a principal obiigor, that he was surety was no defense to the action. (Ritter v. Hamilton, 4 Tex. R.)
    
      E. 2Í. Pease, for appellee.
    I. The statute expressly declares that a security shall not be sued unless the ' principal is first or simultaneously sued, except in certain cases, of which this is one. (Hart. Dig., art.. 670.) The discontinuance as to Cokér left this suit in tlie same situation as if he had never been sued. It could not have been contemplated by (.lie Legislature when it required the principal to he sued first, or simultaneously with the security that a party would he. allowed to evade that provision by dismissing as to the principal, after lie had been served, and taking judgment against a security alone. The filing a petition is as much a commencement of a suit, as the service of process, biit the statute expressly provides that when any party lias not been served with process the plaintiff shall not he permitted io discontinue as to him if he be a principal, and take judgment against the security, (Hart. Dig., art. 704.) What, reason is there why ho should be allowed to do the same thing where there has been service ?
    II. The plea alleges that this note was given for property bought by Coker at a sale of property of A. J. Reynolds’s estate. The note is payable to one of the plaintiffs as administrator of A. J. Reynolds. He knew that defendant Crump was only a security on the note. The other plaintiff, by not answering the interrogatories, admit ted that he knew the consideration of the note, aiid that defendant Crump was only a security.
    Under our system of practice we contend that a party to a joint and several promissory note may prove against all having notice that he was only a surety, and may claim all the priveleges of a surety. (Smith v. Doak, 3 Tex. R., 215.)
   Wheeler, J.

The only question presented hv the record is whether, after the death of the defendant Coker, it was competent for his codefendant, Crump, to sot up the defense that lie was but surety of the former for the purpose of defeating (he action under the provision of the statute which gives the surety (lie privilege of not being first sued. And we are of opinion that it was not. Under (lie decisions of tliis court that defense could not avail the defendant. in t his action.

Note 13.—A surety cannot insist that the administrator of the deceased maker of the'note sued on should be made a defendant. (Walker v. Collins, 22 T., 180)

In Scott v. Dewees (2 Tex. R., 153) we decided that where the principal has died the surety may bo sued in the first instance.

And in the’ case of Ritter v. Hamilton (4 Tex. R., 325) we decided that to entitle a surety to avail himself of tiie privilege conferred by the statute he must have contracted as surety.

Tiie court therefore erred in overruling tiie plaintiffs’ exceptions to the plea and annexed interrogatories of the defendant and in the instructions to the jury, for which the judgment must be reversed and the cause remanded for further proceedings.

Hemphill, Ch, J.

I did not concur in the decisions made in Scott De-wees, nor in that of Ritter v. Hamilton. But those decisions have settled the law for the court, and I do not feel authorized to dissent further or depart from, tiie rules established by those cases.

Judgment reversed.  