Appeal by plaintiff from an order of the Superior Court of the County of Sacramento denying motion for a new trial Denson, J.

Action on a joint and several promissory note. The note was executed at the city of Sacramento by the defendants John Reel and Peter McGraw, as copartners, under firm name of Reel & McGraw, and by the defendant J. B. Cave,' to the plaintiff, May 9th, 1878, for $2,000, payable one month after date, with interest at one per cent, per month, compounding monthly. The answer of the defendants Reel & McGraw was stricken out by the Court, and judgment was given against them as by default. Defendant Cave answered separately, and after denying all indebtedness to plaintiff, and the non-payment of the note, set up affirmatively the following defenses:

And for a further defense this defendant avers that on or about the 9th day of May, A.r>. 1878, said defendants John Beel and Peter McGraw, under the firm name of Beel & McGraw, and as co-partners under such firm name, were indebted to plaintiff in the sum of two thousand dollars, for and on account of moneys before that time had and received by them from plaintiff, and on that day this defendant executed said promissory note, with said Beel & McGraw as surety thereon, for them to plaintiff, and said note was thereupon delivered to and received by plaintiff to secure said indebtedness, and with notice and knowledge by plaintiff that this defendant executed the same as surety for said Beel & McGraw, and in no other way.

That prior to the maturity of said note this defendant notified said plaintiff that if said note was not paid at the maturity thereof by said Beel & McGraw, to proceed, without delay, to collect the same.

That on or about the 3d day of August, 1878, plaintiff was wrongfully and without right in the possession of said note, and then claimed and pretended that the same had not been paid, whereupon this defendant requested plaintiff to bring an action upon said note and to sue out a writ of attachment upon the same, and under said writ to levy upon and seize certain property of said Beel & McGraw as surety, for the payment of any judgment which might be recovered in such action, whereupon, on the day last mentioned, plaintiff commenced this action, and on the same day filed therein the affidavit and undertaking required by law for the issuing of said writ, and afterwards, on the same day, such writ was issued in due form out of this Court and delivered to the Sheriff of said county, and on the same day, under and by virtue of said writ, said Sheriff levied upon and seized a large amount of personal property, which then was in the possession of and belonged to said Beel & McGraw, and was of the value of four thousand dollars, and was more than sufficient to satisfy plaintiff’s said demand, together with all the costs of this action, and the costs and expenses of taking and keeping said personal property under said attachment.

That afterwards, to wit, on the fifth day of August, 1879, plaintiff, without cause and without notice to this defendant, and without his knowledge or consent, voluntarily released said property from said attachment, and caused the same to be delivered to other creditors of said Reel & McGraw.

That prior to the aforesaid release of said property from said attachment, said Reel & McGraw had become insolvent and wholly unable to pay any judgment which might have been or may be recovered in this action. That said Reel & McGraw ever since that time have been and now are insolvent, and have no property liable to be taken under execution.

This answer is made upon information and belief as to payment of said note and the levy and release of said attachment.

That this defendant had no notice or knowledge of such release of said property until the thirtieth day of January, 1880, at which time said writ of attachment was returned by said Sheriff and filed in this Court. Wherefore defendant prays judgment and costs.

As between the plaintiff and the defendant Cave, the action was tried with a jury, who returned a verdict for the defendant. The evidence was conflicting, but there was evidence given tending to show the following facts:

Defendant Cave was surety, though appearing as principal, and this fact was known to plaintiff. The day after the note was signed, Cave called on the President of the bank (Mr. Carey, who personally transacted the whole business), and told him he was sorry he had “ gone on the note,” and asked plaintiff to make Reel & McGraw pay the note at maturity, and plaintiff then promised to do so. During the running of the note, Reel & McGraw accumulated at the bank one thousand seven hundred dollars, and had that amount on deposit to their credit at the maturity of the note, at which time Mc-Graw called at the bank and informed the President that he came to pay the note. This was in the President’s office in the bank. The President stepped into the bank and examined Reel & McGraw’s account; went to his account, saw how it stood, and said, “All right.” The President then furnished McGraw with a blank check for the amount, and directed him to fill it out, which was done. The check was delivered to the President by McGraw, and the note was delivered to McGraw by the President. As McGraw was about leaving the office he remarked to Carey that he “ had bought a lot of wheat, and should need money the following week.” To which Carey replied, “Well, all right, but you leave Uncle Brad’s note, and you can draw what money you require;” and thereupon the note was returned to Carey, and the check was destroyed. This last transaction was without the consent or knowledge of “Uncle Brad” (the name by which defendant Cave was familiarly known). Plaintiff1 then allowed Reel & McGraw to overdraw their account, from time to time, until they failed, on the twentieth day of July, when they were indebted to the bank in an amount exceeding $2,000. The note was given in the first instance to secure the bank upon an acceptance of a draft upon Reel & McGraw for $2,000. At the time the note matured, this acceptance had been paid, and Reel & McGraw had, as before stated, $1,700 on deposit to their credit, and the bank was willing that he should then overdraw enough to pay the Cave note. At or immediately after the failure, the bank attached sufficient property of Reel & McGraw to satisfy all its demands. The property attached was merchandise, book accounts, notes, and cash, of the cash value of $21,000. There were two attachments, amounting to $6,000, ahead of the bank attachment. The attorney for the bank afterwards, without the consent or knowledge of defendant, released the attachment in favor of Pritchard, the first attaching creditor, who had also, on the twenty-fifth of July, taken an assignment from Reel & Mc-Graw of all their property for the benefit of creditors. Cave had no notice of the release of said attachment until the thirtieth day of January, 1880, when the Sheriff made return of his proceedings. Pritchard’s attachment was on the twentieth July, Wilcoxson & Farris’ attachment was on the twenty-second July, the assignment to Pritchard was on twenty-fourth July, and plaintiff’s attachment was on third August.