
    Terrel v. Townsend, Adm’r.
    In an action by the payee against one of several comakers of a joint and several promissory note, a plea that tho defendant was a surety upon Ü;o note, and that the plaintiff, knowing that tact, had instituted suit against tho principal and recovered judgment, from which there was an appeal to the District. Court, upon which appeal no action was taken, and •that when tho judgment was so obtained the principal was solvent, and that tho plaintiff by his own neglect had failed to obtain the money from the principal: Bcld, To be insuf-, fioient.
    Mere indulgence of.the principal will not release a surety.
    One of several makers of a joint and several promissory note, where there are no words in the note to indicate that he signs as surety, cannot plead that lie is a surety for the purpose of requiring another maker, whom the plea indicates as principal, to bo previously or simultaneously sued.
    Appeal from Colorado. This suit was brought by the appellee against the appellant and another upon two joint and several promissory notes made by the defendants and one Conkrite, and payable to plaintiff.
    The defendant Terrel (the appellant) pleaded that he was surety upon the note; that suit liad been prosecuted to judgment against Conkrite, the principal, before a justice of Ihe peace, and an appeal taken by him to the District Court, upon which appeal no action was taken, and that when the judgment was obtained against Conkrite lie was solvent.
    To tiffs plea exceptions were sustained, and the defendant amended, alleging that lie was hut surety upon the note, and that the plaintiff", knowing that fact, had by his own neglect failed to obtain the money f rom the principal. To this plea exceptions were also sustained. There was judgment for the plaintiff, from which the defendant appealed, and assigned as error the sustaining of the exceptions to the pleas.
    
      J. Mivers, for appellant.
   "Wheeler, J.

It is unnecessary to enter upon the inquiry as to what acts or omissions of the holder of negotiable paper will operate to discharge a surety upon it, as it is evident that the pleas in tiffs case do not allege any act or omission which could have that effect. They state no facts which constituted in law a defeuse to the action. There is therefore no error in the judgment, and it is affirmed.

Judgment affirmed.  