Crystal

Action by a surety against the principal on a promissory note.

Defendant pleaded, by demurrer, subdivision 1 of section 339 of the Code of Civil Procedure in bar of the action. The complaint was filed March 11, 1903. The demurrer was sustained, and plaintiff declining to amend his complaint, judgment passed for defendant, from which plaintiff appeals.

The complaint alleges that defendant, Mrs. Hutton, made her certain promissory note, which is set forth in haec verba. The note is dated March 12, 1898, and is payable to the order of H. C. Deakin twelve months after date, with interest at ten per cent, payable annually, and to be compounded, and is signed as follows: “Mrs. C. A. Hutton. .G. W. Crystal, Surety.” It is alleged in the complaint that on March 17, 1898, the note was duly indorsed to Mrs. C. Deakin; that plaintiff, at request of defendant, signed said note as surety and had no interest therein; that defendant refused and neglected to pay said note and interest when the same fell due, and plaintiff, as surety, was compelled to pay the same, and did pay, to Mrs. C. Deakin thereon the sum of $2,360.10 on March 30, 1900, and “that thereupon, on said day, said-Mrs. C. Dealdn…