Appeal from the District Court, Fifteenth Judicial District, City and County of'San Francisco.

This was an action on a promissory note, of which the following is a copy, to wit:

“ $450. San Francisco, December 9th, 1865.

“ Sixty days after date, without grace, for value received, in gold coin of the United States of America, we promise to pay to the order of Jas. E. Damon, at his office in this city, the sum of four hundred and fifty dollars, with interest thereon from date, until paid, at the rate of three per cent per month, payable monthly; the said interest, if not so paid, to become part of the principal and bear the same rate of interest as above specified; and for further value received, we hereby agree and bind ourselves to pay said principal and interest in gold coin of the United States of America, waiving any legal right which we now have or may hereafter have to pay the same in any other money or currency.

“ G. Paedow,

“E. D. Watebs.”

Defendant E. D. Waters, answering separately, set up that he signed the note as surety and not as principal, of which plaintiff had due notice at the time of its execution. That at said time G. Pardow, who alone received the consideration for which the note was made, deposited with plaintiff certain mining stocks, of greater value than the principal and the interest to grow due at maturity on said note, as collateral security, out of which, by a sale thereof, plaintiff was authorized to pay said note. That this latter agreement was in writing, and duly signed by said Pardow and delivered to plaintiff. That, at the maturity of said note, plaintiff still held said stocks, which then still were of ample value to satisfy said note, but instead of selling the same, as authorized, and from the proceeds paying said note, he still holds the same, and until the said stock has become greatly depreciated in value. That he (Waters) had no notice of the nonpayment as aforesaid, until long after the maturity of said note. That both said note and agreement in writing were written on the same piece of paper.

To this answer plaintiff demurred, on the ground that the facts therein contained did not constitute a defense to said action. The demurrer was sustained by the Court, and on failure of defendant Waters to amend, judgment was entered against defendants by default. Defendant Waters appealed, and assigned that the Court below erred in sustaining said demurrer, also in rendering said judgment.