
    Lewis and another v. Riggs.
    One of several promisors not signing as a surety cannot plead that he is a surety merely for' tho purpose of requiring the alleged principal to be jointly or simultaneously sued, or of' preventing tho plaintiff from discontinuing as to tho alleged principal not served with process and proceeding against those served.
    It is always more satisfactory to have a united court, but it will not do to suppose that because one judge of the three composing the court dissents the law is notsettled.
    Error from Rucees. This suit was brought by the appellee against Win. H. Berry, Gideon K. Lewis, and Henry L. Kinney on a note signeil W. H. Perry, Gideon K. Lewis, II. L. Kinney. The petition as originally filed alleged the ■residence of Lewis and Kinney'to be in the county of Nueces, hut did not state the residence of Perry or allege that he resided out of the State or that his-residence was unknown. In an amended petition filed during the term at which tho judgment was takeu the residence of Perry was alleged to he unknown and at the same time the plaintiff discontinued as to him.
    The defendant Kinney excepted to the petition, and answered that he signed the note as surety of Perry, “ who is a citizen of the comity of Bastrop, in the “ State of Texas.” The exception was overruled, and a jury being waived and the cause submitted to the court judgment was rendered for the plaintiff’ against Lewis and Kinney, to which they excepted.
    
      J. Webb, for plaintiff 'in error.
    The evidence is clear that Perry was the principal on the note and Kinney was a surety only, and also that Perry resided in the county of Bastrop, and was a man of property more that sufficient to pay the debt. (Dig., art. 670.)
    “Parol evidence is admissible to show that one of the makers signed “ tlie note as surety, although upon the face of the note they all appear to he “ principals.” (17 Johns. It., 331; 13 Johns. R., 174; Smith v. Doake, 3 Tex. It., 215.)
    The judgment is erroneous, because it was rendered against the surety and not against, the principal. The discontinuance against the principal was not because lie resided beyond the State or was insolvent; neither was alleged, and the proof is to the contrary. (Dig., art. 705.)
    
      OhVwui ¡]- Marshall, for defendant in error.
    Tlie question as to the right of tlie defendant Kinney to aver that he is security in the present case is decided in Hitler v. Hamilton.
    The plaintiff may discontinue as to defendants not served and take judgment against the others under the provisions of Hart. Dig., art. 704.
   Lipscomb, J.

This case comes clearly within the decision of this court in the ease of Ritter v. Hamilton (4 Tex. R., 325) and tlie case of Hamilton v. Ritter, decided at Tyler, April Term, 1852. (8 Tex. R.) When the case of Hitter v. Hamilton was under consideration it was supposed by some of the profession that it was embraced by the decision of this court at tlie preceding term in Smith, Adm’r, v. Doake. (3 Tex. R., 215.) This induced the court to review that ease in its opinion, and lo show that they rested upon distinct grounds and had not the slightest analogy to each other. Tlie defense set up and sustained by this court in Smith v. Doake was in bar, that went to the discharge and, in fact, showed that Doake had never been legally hound for the debt. The payee, at tiie time Doake put ills name to the paper, became by his own undertaking the agent of Doake, and was faithless and did not discharge, hut violated the trust he had assumed. In the case of Ritter v. Hamilton tlie defense set up, as in the one before ns, was not in bar, but in abatement, claiming an advantage, under a statute that a majority of the court believed did not embrace liis case, and, if sustained, would only have abated the case. It is true the decision of the court was not unanimous— the chief justice dissented — and it is to he regretted that there was any disunion of opinion among the members of the court, and it is always more satisfactory to have a united court, but it will not do to suppose that because one judge of tlie three composing the court dissents the law is not settled. A majority of the court are well satisfied with the correctness of the decision on the point presented, and, until satisfied of their error, will adhere to it as settled.

The judgment is affirmed; bnt no damages will be given, as it is presumable that the case of Ritter v. Hamilton had escaped the notice of the counsel who brought the case up for revision.

Judgment affirmed.  